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THE NEW U.S.
APPROACH TO THE FISSILE MATERIAL

CUTOFF TREATY: WILL DELETION OF A VERIFICATION
REGIME PROVIDE A WAY OUT OF THE WILDERNESS?
David S. Jonas*
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599
II. ROADMAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
III. A NEW APPROACH TO A FMCT . . . . . . . . . . . . . . . . . . . . . 602
IV. FMCT BACKGROUND AND HISTORY . . . . . . . . . . . . . . . . . 605
V. THE CONFERENCE ON DISARMAMENT AND THE FMCT: A

HARD ROAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
VI. HOW TO ADDRESS NUCLEAR PROLIFERATION ? . . . . . . . . . 617
VII. NATIONAL SECURITY , NONPROLIFERATION , AND

COUNTER -PROLIFERATION . . . . . . . . . . . . . . . . . . . . . . . . . 619
VIII. FMCT AND THE NONPROLIFERATION REGIME . . . . . . . . . . 624
IX. WHY PURSUE A FMCT? . . . . . . . . . . . . . . . . . . . . . . . . . . . 627
X. THE TIME FOR A FMCT IS NOW . . . . . . . . . . . . . . . . . . . . . 638
XI. CUSTOMARY INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . 639
* B.A. Denison University; J.D. Wake Forest University School of Law; LL.M. The Judge
Advocate General’s School, U.S. Army; LL.M. Georgetown University Law Center. The author
is the General Counsel of the National Nuclear Security Administration at the U.S. Department of
Energy. He previously served as a U.S. Marine Corps officer on the Joint Chiefs of Staff as nuclear
nonproliferation planner. He is also an adjunct professor of law at Georgetown University Law
Center and The George Washington University Law School where he teaches nuclear
nonproliferation law. The views expressed herein are his own and do not necessarily reflect the
official policy or position of the National Nuclear Security Administration, the U.S. Department
of Energy or the U.S. Government. The author wishes to thank Professor David A. Koplow of
Georgetown University Law Center for his comments on this Article. The author also wishes to
recognize Alice Kottmyer, Terrill Ray, Adam Scheinman, Irwin Binder, Sean Oehlbert, Ted
Bowyer, Mark Goodman, and James Windle for their views on this Article. This Article is
dedicated to the author’s wife, Tina.
597
598 FLO RID A JOU RN AL O F IN TERNATIO N AL LAW [V ol. 18
XII. THE FMCT WITHIN THE BROADER NPT FRAMEWORK . . . 641
XIII. CRITICAL STATES PARTIES FOR THE FMCT . . . . . . . . . . . . 646
XIV. WHAT A FMCT WOULD LIKELY

PROHIBIT AND AUTHORIZE . . . . . . . . . . . . . . . . . . . . . . . . 647
XV. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649

A. Fissile Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649
B. Production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650
C. Scope and Existing Stocks . . . . . . . . . . . . . . . . . . . . . . . 650
D. Enrichment and Reprocessing Facilities . . . . . . . . . . . 653
E. Facilities Covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654
F. Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655
XVI. BASIC OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

A. Verification and Monitoring . . . . . . . . . . . . . . . . . . . . 656
B. Headquarters Commission . . . . . . . . . . . . . . . . . . . . . . 663
C. Entry-Into-Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 664
D. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665
XVII. WHY VERIFICATION IS PROBLEMATIC . . . . . . . . . . . . . . . . 665
XVIII. A NATIONAL SECURITY EXCLUSION ? . . . . . . . . . . . . . . . . 670
XIX. COMPARISON WITH OTHER RELEVANT ARMS

CONTROL AND NONPROLIFERATION AGREEMENTS . . . . . . 671
XX. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 673

2006] TH E N EW U .S. APPRO AC H TO TH E FISSILE M ATERIAL CU TO FF TREATY 599
I ask you to stop and think for a moment what it would mean to
have nuclear weapons. . . . in the hands of countries large and small,
stable and unstable, responsible and irresponsible, scattered through
the world. There would be no rest for anyone then, no stability, no
real security and no chance of effective disarmament.1
I. INTRODUCTION
Nuclear proliferation2 and the concomitant potential for nuclear
terrorism is the greatest threat to the United States in the twenty-first
century. President Kennedy’s remarks, prescient as they were, did not
foresee the threat from non-state actors and their quest for nuclear
weapons. America must do all it can to prevent terrorist acquisition of
nuclear capability. Unfortunately, the United States has no choice in the
matter. Indeed, as Leon Trotsky once said, “you may not be interested in
war, but war is interested in you.”3
Potential terrorist acquisition of nuclear capability confounds a guiding
principle of international relations since the Peace of Westphalia, roughly
four hundred years ago, when the nation-state system emerged in Europe.
The principle is that only another state, with its power of vast armies and
navies, could threaten or harm another state.4 Today, a few terrorists armed
with a nuclear weapon or other weapons of mass destruction (WMD) can
pose a threat equal to or greater than the military might a sovereign state
can summon.
No other device can compare to the power of a nuclear weapon to
inflict unfathomable destruction. Other WMD, such as chemical or
biological weapons, horrific as they are, seem less threatening by
comparison. All WMD can destroy human life, livestock and animal life,
nd crops. But only nuclear weapons also destroy buildings and physical
infrastructure, and do so on a vast scale.
1. Statement by President John F. Kennedy, July 26, 1963, U.S. ARMS CONTROL AND
DISARMAMENT AGENCY, DOCUMENTS ON DISARMAMENT, 1945-1959, at 396.
2. Nuclear proliferation initially meant the acquisition of nuclear weapons by states that did
not already possess them. Now the term refers to “horizontal” proliferation while “vertical”
proliferation refers to greater numbers of nuclear weapons of increasing sophistication by states that
already have them. See Richard L. Williamson, Jr., Law And The H-Bomb: Strengthening The
Nonproliferation Regime To Impede Advanced Proliferation, 28 CORNELL INT’L L.J. 71, 77 (1995).
The author notes that some believe that biological weapons may be equally or more devastating due
to the possibility of a pandemic spreading far beyond the impact area of a nuclear weapon.
3. Quoted in George F. Will, The Doctrine of Preemption, IMPRIMIS, Sept. 2005, at 1.
4. Id.; see also STEPHEN D. KRASNER, SOVEREIGNTY (1999).
If Al Qaeda was to rent a van to carry [a] ten-kiloton Russian

weapon into the heart of Times Square and detonate it adjacent to
the Morgan Stanley headquarters at 1585 Broadway, Times Square
would vanish in the twinkling of an eye. The blast would generate
temperatures reaching into the tens of millions of degrees
Fahrenheit. The resulting fireball and blast wave would destroy
instantaneously the theater district, the New York Times building,
Grand Central Terminal, and every other structure within a third of
a mile of the point of detonation. The ensuing firestorm would
engulf Rockefeller Center, Carnegie Hall, the Empire State
Building, and Madison Square Garden leaving a landscape
resembling the World Trade Center site. From the United Nations
headquarters on the East River and the Lincoln Tunnel under the
Hudson River, to the Metropolitan Museum in the eighties and the
Flatiron building in the twenties, structures would remind one of the
Alfred P. Murrah Federal Office Building following the Oklahoma
City bombing. 5
Fissile material, here defined as highly enriched uranium (HEU) or

plutonium (Pu), is the indispensable ingredient of a nuclear weapon, and
the most difficult to obtain and manufacture. It is the availability of this
material, inter alia, that the United States and nearly every other
responsible nation seek to constrain in order to enhance global security by
reining in nuclear proliferation.
A Fissile Material Cutoff Treaty (FMCT),6 viewed by many as the next
multilateral measure to halt nuclear proliferation, would limit the amount
of fissile material available for nuclear weapon use by banning any further
production of fissile material for nuclear weapons or nuclear explosive
purposes. As such, it would be an additional means of halting nuclear
proliferation, added to an existing nuclear nonproliferation regime.7 FMCT
5. GRAHAM ALLISON, NUCLEAR TERRORISM, THE ULTIMATE PREVENTABLE CATASTROPHE

3-4 (2004).
6. Some refer to this proposed treaty as a Fissile Material Treaty (FMT) in order to highlight
the fact that many states have not given their support to the idea of a “cutoff.” This issue is
discussed in more detail, infra.
7. The term “regime” in the nuclear nonproliferation context is a bit misleading, although
it is widely used and will also be used in this Article. The nuclear nonproliferation regime
encompasses a diverse mix of treaties, agreements, and organizations including the NPT, CTBT,
Nuclear Weapon Free Zones, Export Control legislation and regulations, Security Assurances, the
Nuclear Suppliers Group, the Zangger Committee, and the International Atomic Energy Agency.
The term usually connotes order and regulation by a hierarchical system of some sort. That is not
the case with the nuclear nonproliferation regime. No single individual or organization is “in
charge.” See Ben Sanders, A Short History of Nuclear Non-Proliferation, Programme for Promoting
negotiations could produce confidence building measures and declarations

from all states with nuclear weapons and fissile material.8
Stated simplistically, the goal is to continue adding restrictions until all
proliferation possibilities have been foreclosed although that is unrealistic
and overstates the goal. The true goal is to prevent, delay, and discourage
proliferation through a broad array of mutually reinforcing measures. The
United States supports FMCT negotiations and should continue to do so.9
A FMCT would cap certain classes of fissile material and reduce the
number of enrichment and reprocessing facilities that might be terrorist
targets. The new U.S. position, no longer supporting a verification regime
for FMCT,10 may well be the impetus that finally permits negotiations on
this treaty to progress.
II. ROADMAP
This Article will review the Administration’s new approach to FMCT
along with a history of FMCT, discuss why the United States should
continue to pursue a FMCT, and examine the issues surrounding the new
U.S. position which is to support negotiations on such a treaty, but without
a verification regime.11 The Article will argue that this is the correct
approach which increases the chance for the treaty to move forward. It also
examines the relevance of a FMCT in the overall nuclear nonproliferation
and arms control context. Additionally, it will address the states whose
participation in a FMCT is vital and argue for the participation of those
states. It will discuss what activities a FMCT would likely prohibit and
authorize. Key provisions of a FMCT will be reviewed, including
suggested definitions of key terms such as “fissile material” and
“enrichment/reprocessing facilities.” The Article will consider what a
verification scheme would entail and why it is problematic, unreliable and
costly, to include discussion of a “national security exclusion,” a
Nuclear Non-Proliferation, available at http://www.nea.fr/html/law/nlb/Nlb-62/sandslov.pdf (last

visited Aug. 31, 2006). But as more measures, treaties, groups, and organizations exist with the goal
of preventing nuclear proliferation, most of the holes in the leaky sieve which existed have been
plugged. Ultimately, as more measures are put into place, proliferation should ideally cease or
become very difficult.
8. Daryl G. Kimball, Act Now on Fissile Material Treaty, 34 ARMS CONTROL TODAY
(2004), available at http://www.armscontrol.org/act/2004_04/Focus.asp.
9. See Sanders, supra note 7.
10. U.S. Department of State, Fissile Material Cutoff Treaty Policy, July 2004, Statement of
U.S. Representative to the Conference on Disarmament, Jackie Sanders at the CD, July 29, 2004.
11. The Conference on Disarmament has considered a FMCT annually now for ten years.
controversial proposal that only would be relevant to a treaty without a

verification regime. The Article will also review the histories of other
related agreements and conclude that the Administration’s new non-
verification approach to FMCT, in spite of widespread criticism, may yet
to prove its merit.
A FMCT has been discussed conceptually for years, but that is as far
as it has ever progressed.12 No FMCT has been negotiated. In fact,
negotiations have only once started briefly and never resumed.13 Thus,
there has not even been any proposed treaty text available that has been
discussed in the public domain until the Administration recently tabled
draft text.14 No law review articles exist on the topic, and as such, this
Article is intended as a seminal work to initiate discussion of a FMCT in
the legal arena.
III. A NEW APPROACH TO A FMCT

The prevailing view in the international community with regard to a
FMCT is that such an agreement would include some type of verification
regime in the treaty architecture.15 The Administration announced recently
that while the United States continues to support negotiations on a FMCT,
it had serious reservations concerning the viability and achievability of an
effectively verifiable FMCT. This has translated into the Administration
no longer supporting efforts to establish a FMCT verification regime.16
12. This occurred at the Conference on Disarmament in 1998.

13. CHARLES D. FERGUSON ET AL., THE FOUR FACES OF NUCLEAR TERRORISM 321 (2004).
14. Draft Mandate Text, available at http://www.usmission.ch/Press2006/0518DraftFMCT.
html [hereinafter U.S. Draft FMCT].
15. The term “regime” is intended to be applied generally. It is used in connection with the
NPT and FMCT verification. In international relations theory, “regimes can be defined as sets of
implicit or explicit principles, norms, rules, and decision-making procedures around which actors’
expectations converge in a given area of international relations.” Stephen Krasner, Structural
Causes and Regime Consequences: Regimes as Intervening Variables, 36 INT’ ORGS. 1, 2 (1982).
The significance of the concept is that it may facilitate communication and cooperation among
states. See generally ROBERT O. KEOHANE, NEOLIBERAL INSTITUTIONALISM: A PERSPECTIVE ON
WORLD POLITICS IN INTERNATIONAL INSTITUTIONS AND STATE POWER: ESSAYS IN INTERNATIONAL
RELATIONS THEORY 2 (Robert O. Keohane ed., 1989); Anne-Marie S. Burley, International Law
and International Relations Theory: A Dual Agenda, 87 AM. J. INT’L L. 205, 220 (1993). To a
regime theorist, the nonproliferation regime would consist of the NPT, regional treaties, the
safeguards and rules of the IAEA and related U.N. resolutions. See Joseph Nye, Maintaining a Non-
Proliferation Regime, 35 INT’L ORGS. 16 (1981), quoted in SCOTT, infra note 108, at 11.
16. U.S. Department of State, Fissile Material Cut-Off Treaty Policy, July 2004. Statement
of U.S. Representative to the Conference on Disarmament Jackie Sanders at the CD, July 29, 2004.
Critics have cast the new Administration position in negative terms and
as adverse to the goals of arms control and nonproliferation. Many claim
it is also likely to “further stall efforts to secure this long-overdue
nonproliferation measure.”17 Some view this as the Bush Administration
reversing its support for FMCT18 and deem19 it a “poison pill” for the
FMCT.20 Critics believe that “[n]egotiating a verifiable FMCT will be a
political challenge, but it is technically feasible to establish the means to
effectively monitor and verify compliance with the treaty in order to detect
and deter clandestine nuclear bomb production efforts.”21
Foreign reaction to the Administration’s position generally could be
characterized as muted disapproval. The Japanese Ambassador to the
Conference on Disarmament (CD) noted that Japan considers effective
verification essential to a FMCT regime.22 Australia’s Ambassador23 to the
CD also noted that a FMCT should contain appropriate verification
arrangements, as have some commentators and experts.24 Interestingly
enough, China “attach[ed] importance to the position of the U.S.
delegation,” and wanted to learn more about it so that it could be studied
17. Arms Control Experts Say Ban on Production of Key Nuclear Materials for Weapons
Should be Universal and Verifiable, ARMS CONTROL TODAY, July 30, 2004 [hereinafter Arms
Control Experts], available at http://www.armscontrol.org/pressroom/2004/20040730_FMCT.asp.
18. See Kimball, supra note 8.
19. See, e.g., Fissile Material Cutoff Treaty, Nuclear Threat Initiative, at
http://www.nti.org/e_research/cnwm/ ending/fmct.asp [hereinafter NTI] (noting that “this new
position made successful negotiation of an agreement in the near term even less likely than before.”
The author then injects some welcome realism, in stating the obvious: “Even before the Bush
Administration’s announcement, however, negotiation of an FMCT had been stymied for years and
seemed to have little likelihood of moving forward soon.”).
20. Daryl G. Kimball, The Bush Administration and the Fissile Material Cutoff Treaty:
Reversing Course on Verification, Arms Control Association Press Roundtable, Sept. 2, 2004, at
http://www.armscontrol.org/events/FMCT_Excerpts.asp [hereinafter Reversing Course].
21. Arms Control Experts, supra note 17 (Statement of Dr. Frank Von Hippel, co-director
of the Program on Science and Global Security at the Woodrow Wilson School at Princeton
University).
22. See Foreign Reaction to Bush Administration’s New FMCT Approach, at
http://www.armscontrol.org/events/FMCT_Foreign_ Response.asp.
23. Id.
24. John Carlson, Can a Fissile Material Cutoff be Effectively Verified?, ARMS CONTROL
TODAY, Jan./Feb. 2005, available at http://www.armscontrol.org/act/2005_01-02/Carlson.asp?.
in Beijing.25 Also, the other P-526 states seemed inclined not to oppose the
U.S. position.
Precisely how it is possible to “stall” a treaty that has moved not an
inch in a decade is difficult to say. How anyone or anything could make
matters worse seems rather a rhetorical question, although theoretically
matters can always deteriorate. Such criticism of the Administration
position, therefore, appears to be politically motivated. That is especially
so since on May 18, 2006, the United States tabled the first draft FMCT at
the CD, evidence of its clear commitment to treaty negotiations.
An approach which is incremental is not irresponsible or
unprecedented. It is often the case in arms control and nonproliferation
negotiations where states, taking into account the political realities of the
moment, elect to achieve far less than originally hoped for in order to
attain some progress. Another benefit of the Administration’s approach is
that since no progress has been achieved for over a decade, a new, more
limited approach seems more viable so that some agreement on a FMCT
might be attainable.
In fact, the Nuclear Nonproliferation Treaty (NPT),27 the keystone of
the nuclear nonproliferation regime, followed a similar pattern with its
verification scheme. That treaty was concluded in 1968 and entered into
force in 1970. The model safeguards agreement was not concluded until
1972.28 When these safeguards were proven to be inadequate in the wake
of revelations regarding the Iraqi nuclear program before the first Gulf
War, the IAEA then developed the Model Additional Protocol in 1997.29
25. Id. The author suspects that China was thrilled at the new U.S. position and will
ultimately be fully supportive. China probably does not want a verification regime, but simply did
not wish to so state in public. In fact, the Administration position is very clear, so there is not really
much to “learn more about.”
26. The P-5 are the five permanent members of the U.N. Security Council: the United States,
the United Kingdom, Russia, China, and France. The P-5 also happen to be the five recognized
Nuclear Weapon States in the NPT.
27. Treaty on the Nonproliferation of Nuclear Weapons, opened for signature July 1, 1968,
21 U.S.T. 483, 484, 729 U.N.T.S. 161, 169 [hereinafter NPT]. See also G.A. Res. A/RES/1380
(XIV), Nov. 20, 1959; G.A. Res. on the Treaty on the Nonproliferation of Nuclear Weapons with
text of treaty annexed, A/RES/2373 (XXII), June 12, 1968.
28. International Atomic Energy Agency, The Structure and Content of Agreements Between
the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear
Weapons, INFCIRC 152 (1972), available at http://www.iaea.org/Publications/Documents/Infcircs
/Numbers/nr151-200.shtml.
29. The Protocol Additional to the Agreement between the United States of America and the
International Atomic Energy Agency for the Application of Safeguards in the United States of
America. The Additional Protocol includes both location specific and wide area environmental
sampling, but all articles of the Protocol are subject to a very broad national security exclusion. The
This expanded the IAEA’s authority to detect undeclared enrichment and

reprocessing activities in a state. Given the success of the NPT, it hardly
seems unreasonable to argue for the validity and effectiveness of this
approach.
Rather than impede nonexistent FMCT progress, the new U.S. position
might, contrary to expectations, be the long-awaited impetus allowing
FMCT to finally gain traction. Real negotiations may now finally begin,
albeit toward a different FMCT than many initially contemplated.
IV. FMCT BACKGROUND AND HISTORY

The earliest proposal on record for controlling or banning the
production of fissile material followed closely on the heels of World War
II. The Acheson-Lilienthal Report, named for the U.S. Secretary of State
and the soon-to-be first Chairman of the U.S. Atomic Energy Commission,
included a proposal by President Truman involving the concept of
controlling nuclear energy for both peaceful and military purposes.30 The
report had no provision for handling violations since the goal of the
proposed organization was to warn of impending danger.31
As early as 1946, Bernard Baruch, U.S. Representative to the U.N.
Atomic Energy Commission (UNAEC), for whom the Baruch Plan32 is
named, proposed the international control of atomic energy. He stated that
“[t]he Authority should have as one of its earliest purposes to obtain and
maintain complete and accurate information on world supplies of uranium
and thorium and to bring them under its dominion.”33 While the Authority
was not specified, it was to become the International Atomic Energy
Agency (IAEA).34
U.S. Senate gave its advice and consent to ratification in March 2004. The President will ratify the
Additional Protocol once legislation required to implement it is passed. For an excellent discussion
of the Additional Protocol, see Theodore Hirsch, The IAEA Additional Protocol, What It Is and Why
It Matters, 11 NONPROLIFERATION REV. 140-63 (2004).
30. See GEORGE BUNN, ARMS CONTROL BY COMMITTEE: MANAGING NEGOTIATIONS WITH
THE RUSSIANS 59-61 (1992).
31. See ANNETTE SCHAPER, A TREATY ON THE CUTOFF OF FISSILE MATERIAL FOR NUCLEAR
WEAPONS–WHAT TO COVER? HOW TO VERIFY? 48 (Frankfurt 1997), quoted in Roberts, infra note
39, at 21.
32. The Baruch Plan: Statement by the U.S. Representative to the U.N. Atomic Energy
Commission, June 14, 1946, U.S. DEP’T OF STATE, DOCUMENTS ON DISARMAMENT 1945-1959,
Doc. No. 4, at 7-15 (1960).
33. Id.
34. Id. The Baruch Plan proposed comprehensive international control of nuclear energy. The
IAEA really is the direct descendant of “Atoms for Peace” with its greater respect for sovereignty
In December 1946, the UNAEC delivered its first report to the Security
Council recommending the establishment of an international agency that
would arrange for the disposal of fissile materials and guaranteeing that
the manufacture and possession of atomic weapons would be prohibited.35
Continuing its quest for major controls on fissile materials, the next
report of the UNAEC in September of 1947 recommended a system of
mining and processing controls where all source materials would be owned
and managed by an international agency.36 The Soviet Union rejected the
proposal claiming that the inspection provisions violated national
sovereignty.37 Instead, the Soviets proposed the Gromyko Plan for the
elimination of all atomic weapons.38
In May 1955, President Eisenhower’s Special Assistant for
Disarmament presciently concluded that the concept of eliminating nuclear
weapons was an “impractical goal” but urged a full accounting of the past
production of nuclear material.39 President Eisenhower presented his
“Atoms for Peace” plan at the United Nations in 1953.40 The goal of that
plan was to advance the peaceful uses of atomic energy along with nuclear
disarmament by transferring fissile material from military to civilian
uses.41 President Eisenhower referred to doing more than merely reducing
or eliminating atomic materials for military purposes.42 By implication,
that could only mean seeking an agreement to halt the production of fissile
materials for military purposes. Given the realities of the Cold War,
however, circumstances were simply not conducive to such an agreement.
President Eisenhower proposed establishing the IAEA, which would
and more limited international controls.

35. Id.
36. Id.
37. While literally true, of course, it is a specious argument. Any inspection by an
international agency might be viewed as a technical violation of national sovereignty. The
sovereignty is simply waived for the specific and very limited purpose of conducting the inspection,
so there is no meaningful violation of sovereignty.
38. Address by the Soviet Representative (Gromyko) to the United Nations Atomic Energy
Commission, June 19, 1946, U.S. DEP’T OF STATE, DOCUMENTS ON DISARMAMENT 1945-1959, at
17-24.
39. Guy B. Roberts, This Arms Control Dog Won’t Hunt: The Proposed Fissile Material Cut-
off Treaty At The Conference On Disarmament, at 16-17, U.S. Air Force Institute for National
Security Studies, Occasional Paper 36, Arms Control Series, Jan. 2001 (providing an excellent
compendium of FMCT history and issues).
40. United States “Atoms for Peace” Proposal: Address by President Eisenhower to the
General Assembly, Dec. 8, 1953, U.S. DEP’T OF STATE, DOCUMENTS ON DISARMAMENT 1945-1959,
at 393-400 [hereinafter Atoms for Peace].
41. Id.
42. Id.
sponsor the peaceful uses of nuclear energy and apply safeguards to ensure
no diversion of nuclear material to military purposes.43
In 1954, India proposed a non-discriminatory, universal convention
halting the production of fissile materials. Indian Prime Minister Nehru
called for a nuclear “Standstill Agreement” in April, 1954.44 Then in 1957,
the U.S. Secretary of State, John Foster Dulles presented a paper to the
U.N. Disarmament Commission. It proposed that all “future production of
fissionable material will be used under international supervision,
exclusively for non-weapons purposes,” but the Soviet Union blocked any
agreement claiming that a prohibition on fissile material production would
not work without a ban on nuclear weapons.45
That same year, the U.N. General Assembly adopted a U.S. sponsored
resolution that encouraged other states to consider an agreement on “the
cessation of the production of fissionable material for weapons
purposes.”46 That was the first U.N. General Assembly Resolution
specifically addressing a FMCT.47 In 1958, the United States, United
Kingdom, and France proposed a draft agenda for a superpower summit.48
The first topic on the proposed agenda was a FMCT.49
In the early 1960s a nuclear weapon test ban was the primary American
goal in the disarmament arena, replacing the FMCT.50 In 1964, President
Johnson proposed to the Eighteen-Nation Disarmament Committee a
freeze in the nuclear arms race and a FMCT, starting with a measure to
verify the closure of production facilities.51 Later that year, the United
States, United Kingdom, and Soviet Union all announced that they would
unilaterally cut production of fissile materials for use in nuclear weapons.52
In the 1960s nuclear perils threatened global holocaust. The Cuban
missile crisis heightened Cold War fears of nuclear confrontation. In that
context, negotiations on the NPT began. The NPT was ultimately to
become the most successful and widely subscribed arms control treaty in
43. Id.
44. Id.
45. Atoms for Peace, supra note 40, at 393-400.
46. Id.
47. Id.
48. Id.
49. Id.
50. Atoms for Peace, supra note 40, at 393-400. In fact, intense negotiations resulted in the
Limited Test Ban Treaty between the United States and the Soviet Union in 1963.
51. Id.
52. Id.
history, with 188 states parties.53 During the negotiations on the NPT, a
ban on the production of fissile materials was contemplated, along with a
ost of other measures, including negotiations on a comprehensive nuclear
test ban treaty.54
After the NPT negotiations were concluded and the treaty entered into
force in 1970,55 the next significant development for a FMCT occurred in
1978.56 A Canadian proposal in the Tenth Special Session of the U.N.
Devoted to Disarmament called for banning fissile materials for use in
weapons in order to “suffocate” nuclear proliferation.57
In 1979, the United Nations established the Conference on
Disarmament (CD) as the single multilateral disarmament negotiating
forum for the “international community.”58 Beginning with a membership
of forty states, the CD now comprises sixty-six states.59 It is the successor
to other disarmament negotiating bodies including the Ten-Nation
Committee on Disarmament, the Eighteen-Nation Disarmament
Committee,60 and the Conference on the Committee on Disarmament.61
In 1982, India once again made a FMCT-type proposal, calling for a
“Freeze on Nuclear Weapons” and requesting that the nuclear powers halt
production of nuclear weapons and fissile material for weapons purposes.62
India tabled this resolution annually in the CD with no result when, in
1988 it joined a Mexican proposal on the same topic.63
53. The current number of 188 excludes North Korea. See Ralph C. Hassig & Kongdan Oh,
North Korea: A Rogue State Outside the NPT Fold, EJOURNALUSA: FOREIGN POL’Y AGENDA, Mar.
2005, at http://www.usinfo.state.gov/journals/itps/0305/ijpe/kongdan.htm.
54. Roberts, supra note 39.
55. See supra note 53.
58. This term is widely used but of uncertain meaning. The author views the term as
misleading, idealistic and aspirational. When reference is made to the “international community,”
there is an inference of unanimity or general agreement and nothing could be further from the truth.
The term really refers to the states that meet in the United Nations context and often signify their
approval or disapproval of certain issues via resolutions. But unanimity within this “community”
is a rare commodity indeed. In fact, members of the “community” are often at war with each other.
59. See Conference on Disarmament, available at http://www.unog.ch/80256EE600585943/
(httpPages)/2D415EE45C5FAE07C12571800055232B?OpenDocument.
60. Id.
61. Id.
62. Id.
63. See Roberts, supra note 39, at 22. The Indian proposal in the U.N. General Assembly was
set forth in the 37th Sess., G.A. Res. 37/100A. The Mexican proposal was contained in U.N.
General Assembly, 44th Sess., G.A. Res. 44/117D.
The Comprehensive Nuclear Test Ban Treaty (CTBT) was negotiated

in the CD, but failure to reach final agreement in the CD required that the
United Nations endorse the treaty by a separate resolution instead of
simple adoption of the CD report to the United Nations.64 The CD
previously had negotiated other significant arms control agreements such
as the Biological Weapons Convention (BWC)65 and Chemical Weapons
Convention (CWC).66 If multilateral negotiations were to take place on a
FMCT, they would logically occur at the CD. The CD is located in
Geneva, Switzerland in the posh Palais de Nations, the original home of
the League of Nations. Of late, the CD has made the hapless League of
Nations appear quite effective by comparison. However, alternative
negotiating venues are conceivable, including an ad hoc coalition-of-the-
willing.
In 1980, Canada and Australia, both strong proponents of a FMCT to
this day, provided a historical look at FMCT.67 In The Prohibition of the
Production of Fissionable Material for Weapons Purposes, the authors
illustrated the development of thinking on a FMCT and noted that such a
proposal had been floating about for twenty-five years.68 It was generally
understood that the Cold War made a FMCT impractical and blocked any
possible progress.69
The key event that thrust FMCT onto the world stage was President
Clinton’s address to the United Nations in 1993, wherein he stated:
We will pursue new steps to control the materials for nuclear

weapons. Growing global stockpiles of plutonium and highly
enriched uranium are raising the danger of nuclear terrorism in all
64. See Comprehensive Nuclear Test Ban Treaty, at http://www.dfat.gov.au/security/aus_

policy.html [hereinafter CTBT].
65. Convention on the Prohibition of the Development, Production, and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction, 26 U.S.T. 571, T.I.A.S.
8062, 1015 U.N.T.S. 163 (1972) [hereinafter BWC]. The United States acceded to the BWC on
Mar. 26, 1975. See also Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous
or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94
L.N.T.S. 65, 67, 69, entered into force Feb. 8, 1928. The BWC was ratified by the United States
on Jan. 22, 1975 subject to certain reservations.
66. Convention on the Prohibition of the Development, Production, Stockpiling, and Use of
Chemical Weapons and on Their Destruction, Apr. 29, 1997, 1974 U.N.T.S. 45, 32 I.L.M. 800
(1993) [hereinafter CWC].
67. CD Document CD/90.
68. Rebecca Stevens, FMCT Background, Disarmament Forum, at http://www.unidir.ch/
pdf/articles/pdf-art233.pdf.
69. Id.
nations. We will press for an international agreement that would

ban production of these materials forever.70
Presidents Clinton and Boris Yeltsin, at their meeting in Moscow on

January 14, 1994, agreed that a FMCT would be a vital contribution to the
goal of nuclear nonproliferation.71 With the end of the Cold War,
international consensus and a U.N. General Assembly Resolution,
combined with strong backing from an American President,72 FMCT
finally had a clear and realistic path ahead.
That same year, the United Nations passed, by consensus, U.N. General
Assembly Resolution 48/75L which recommended the “negotiation of a
non-discriminatory, multilateral, and internationally and effectively
verifiable treaty banning the production of fissile material for nuclear
weapons and other nuclear explosive devices.”73 One wonders how it can
be that virtually every nation on earth has given its blessing to the concept
of a FMCT and yet, there is no FMCT.
The resolution requested that the IAEA provide assistance for the
verification of a FMCT.74 The involvement of the IAEA, itself an
independent, specialized agency of the United Nations, seemed eminently
logical given that it already had a role in the verification of the NPT
through the system of international safeguards it administers. Safeguards
provide technical means for the IAEA to detect or deter diversion or other
illicit use of nuclear material and comprises measures by which the IAEA
independently verifies declarations by states about their nuclear material
and activities.75 Since safeguards or similar verification measures are
costly, such expenses ultimately borne by states themselves, turning to an
agency with existing expertise seems a sensible strategy. Even IAEA
involvement must achieve consensus among negotiating parties, however,
and some states have hinted at objections, so the issue of the new
inspectorate, if there is to be one, could also be contentious.
70. Remarks to the 48th Session of the U.N. General Assembly in New York City, 2 Pub.
Papers 1612, 1615 (1993) [hereinafter Remarks].
71. Joint Statement on Non-Proliferation of Weapons of Mass Destruction and the Means of
Their Delivery, 1 Pub. Papers 71 (1994).
72. Remarks, supra note 70.
73. U.N. General Assembly Resolution, Prohibition of the Production of Fissile Material for
Nuclear Weapons of Other Nuclear Explosive Devices, G.A. Res. 48/75L, U.N. GAOR, 48th Sess.,
Supp. No. 49, at 83, U.N. Doc. A/48/49 (1994) [hereinafter G.A. Res. 48/75L].
74. Id.
75. See IAEA.org, About Safeguards, at http://www.iaea.org/OurWork/SV/safeguards/about.
html.
In the Chemical Weapons Convention,76 for example, there was no

organization in existence experienced in the verification of chemical
weapons agreements. Therefore, the signatories had to create the
Organization for the Prevention of Chemical Weapons (OPCW), and fund
its headquarters and staff in Brussels, Belgium.77
In 1994, the CD appointed Canadian Ambassador Gerald Shannon as
Special Coordinator for a FMCT.78 He then quickly undertook the process
of consultations with CD states resulting in the CD’s adoption, in March
1995, of what became known as the “Shannon Mandate,” based on
Ambassador Shannon’s report to the CD.79 The Shannon Mandate urged
the formation of an Ad Hoc Committee to begin negotiations on “a non-
discriminatory, multilateral and internationally and effectively verifiable
treaty banning the production of fissile material for nuclear weapons or
other nuclear explosive devices.”80
It is useful to analyze the treaty contemplated by the Shannon Mandate.
First, it is clear that it would not ban all fissile material production, but
only fissile material for nuclear weapon or nuclear explosive uses.81 It
would allow production for peaceful civilian uses and for non-explosive
military use such as naval propulsion.82 Thus, nations such as the United
States and Russia, both with significant naval nuclear propulsion programs
76. CWC, supra note 66.

77. See Organization for the Prohibition of Chemical Weapons, The Chemical Weapons Ban:
Facts and Figures, at http://www.opcw.org/factsandfigures/index.html.
78. Id.
79. Conference on Disarmament, Report of Ambassador Gerald E. Shannon of Canada on
Consultations on the Most Appropriate Arrangement to Negotiate a Treaty Banning the Production
of Fissile Material for Nuclear Weapons or Other Nuclear Explosive Devices, CD/1299, Mar. 24,
1995.
80. Id.
81. While it is counterintuitive to discuss a nuclear explosive for any other purpose than a
nuclear weapon, the phrase “other nuclear explosive devices” likely was intended to refer to
“peaceful nuclear explosions.” India tested such a device in 1974, and deemed it peaceful since it
was ostensibly for the purpose of excavation. Historical reference material on such peaceful
explosions is somewhat thin. In 1968, during the NPT negotiations, Japan claimed that once the
distinction between military and peaceful nuclear explosive devices was rendered possible, that the
treaty restrictions on such devices should be lifted. Sweden even proposed an international body
to monitor peaceful nuclear explosions. U.N.Y.B., Vol. 22, 1968, at 11. Peaceful nuclear explosions
would not be viewed favorably today. NPT Art. V “now effectively obsolete, permits NNWS
access to NWS research and development on the benefits of explosions conducted for peaceful
purposes . . .” Daryl Kimball, The Nuclear Nonproliferation Treaty at a Glance, May 2003,
available at http://www.armscontrol.org/factsheets.nptfact.asp.
82. Id.
that utilize substantial quantities of fissile material, could continue to

produce it for that specific non-explosive purpose, albeit a military use.83
Given that a FMCT would be a critical step towards the ultimate goal
of nuclear disarmament, it was strongly endorsed by the NPT states
parties.84 But the NPT has always been criticized as a “discriminatory”
treaty in that it has two unequal classes of states: nuclear weapon states
(NWS) and non-nuclear weapon states (NNWS). To avoid similar
inequities in the NPT from occurring in a FMCT, it was therefore viewed
as essential that the FMCT be non-discriminatory and that it classify all
states in a manner such that they would be treated as equals under the
treaty.85
The issue of existing stocks of fissile material is ultimately problematic
in that regard. A FMCT would still be non-discriminatory in its most vital
sense because all states would have identical obligations not to produce
any fissile material for nuclear weapons. But as with the NPT, there would
likely be two classes of states: those that already possess fissile material
and those without it. Unlike the NPT, however, there would be no need for
formal recognition of this basic difference between states in the treaty
itself.
To avoid the perception of a new, discriminatory instrument, a FMCT
would need to enjoy broad multilateral participation. Like the NPT, it
would ideally include the participation of all U.N. Member States to be a
meaningful and effective treaty, and potentially, over the longer term, to
possibly achieve customary international law status. Of course,
participation by some states is more critical than others—the five
recognized NWS and the four NPT non-party states86 are the most critical
to the success of a FMCT. Given that the DPRK has withdrawn from the
83. The fissile material, in this case HEU, used for naval nuclear propulsion, is often the
same HEU used for nuclear weapons. That is why once a FMCT entered into force, many argue that
HEU production for naval propulsion would have to be under some sort of international safeguards
to ensure that there was no diversion to weapons uses either for the producing state or any of its
allies.
84. See 2000 Final Document and 1995 NPT Conference, Principles and Objectives for
Nuclear Non-Proliferation and Disarmament, available at http://disarmament.un.org/wmd/
1995dec2.htm. NPT 2000 Final Document, available at http://www.ceip.org/programs/npp/
NPT2000FinalText.htm [hereinafter NPT 2000 RevCon].
85. In the author’s opinion, the NNWS were well aware of the discriminatory nature of the
NPT and of the two classes of states parties when they signed the NPT. This is significant evidence
of the value that NNWS see in NPT membership.
86. “Threshold” was never the correct term to apply to states that really did possess nuclear
weapons but decided not to acknowledge it publicly. The term is rarely used today, although it
could apply to Iran. To avoid confusion, the term “NPT non-party states” will be used instead.
NPT and Iran is widely suspected to be pursuing nuclear weapons in

violation of the NPT,87 both could also be considered as vital states for
participation in a FMCT. Since a FMCT is a half-step towards the broader
prohibitions of the NPT, it is arguably more important to bring North
Korea back into the NPT and Iran into NPT compliance, than it is to draw
those states into a FMCT. If they were in the NPT and in good standing,
then, as for other NPT NNWS, FMCT is of diminished practical utility for
these states.
Finally, it has been assumed by CD Member States that a FMCT would
have to be verifiable, in order to provide assurances that while states were
observing the terms of the treaty, other states would not be abrogating the
agreement and producing fissile material for nuclear weapons. Compliance
with any arms control treaty is a major concern. It must be assumed that
some states disregard their treaty commitments. As recent experience with
the NPT illustrates, even if only two states out of nearly two hundred fail
to observe their commitments, it is a major problem.
A Luxembourg or even a Germany may have no inclination to

exploit an arms control agreement as a cover for cheating, but
others will have that simple objective. A general agreement imposes
no restraint on a North Korea or an Iraq. They will be constrained
by direct pressure or by direct action, if they are to be constrained
at all. For rather different reasons, an India or an Israel is not going
to be constrained by a general agreement. To believe otherwise is
to embrace the quixotic notions of the Kellogg-Briand Pact.88
This is especially important in regions where conflict is possible, such as

South Asia, Northeast Asia, and of course, in the Middle East.
While the issue of the verifiability of a FMCT is not what has
ostensibly resulted in deadlock at the CD, verification measures are
something that many nations could accept only with great difficulty, or not
87. See, e.g., Massimo Calabresi, Iran’s Nuclear Threat, TIME, Mar. 8, 2003, available at
http://www.time.com/time/world/article/0,8599,430649,00.html.
88. James Schlesinger, The Demise of Arms Control?, 23 WASH. Q. 180 (2000). The 1928
Kellogg-Briand Pact was the famously ineffective but well intended post-World War I treaty that
purported to outlaw war. See YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE 164 (2001)
(noting that international law had, at that time concluded that war could be outlawed as an
instrument of national policy). What Schlesinger likely means by the term “general agreement” in
the quote above, is a general arms control or nonproliferation agreement. In his view, arms control
agreements are often “little more than pious hopes with little capacity (or even intent) to achieve
enforcement.” He notes that today there are 10-15 states seeking chemical and biological weapons
“unconstrained by their obligations” under the BWC and CWC. Id.
accept at all. And there are reasons for this. Verification means that
inspectors from an international inspectorate such as the IAEA would be
given some degree of free rein, potentially constrained only by managed
access,89 if applicable, to inspect facilities in the sovereign territory of a
state.
Many inspectors in international organizations often hail from states
with less than a sterling pedigree, meaning, at a minimum, that they are not
democratic, such as Iran, which presents a rather curious scenario. In
addition, if managed access fails, those from other NNWS could
potentially acquire nuclear weapons information in the course of such
inspections, undercutting the basic purpose of the NPT.
Inspectors from such states and any non-democratic state are likely to
be spies, although inspectors from any state could be spies. But few
inspectors are from problem states. If verification requirements are
expansive, inspectors could potentially acquire proliferation sensitive
information or proprietary data related to commercial enrichment plants.
Some states, particularly those that have substantial national security
programs of one sort or another, therefore would have great difficulty
providing inspectors access to sites at which a treaty violation is suspected.
Verification regimes usually focus on declared facilities. The question,
then, is how to deal with undeclared facilities and whether states could
both protect sensitive information and deal effectively with undeclared
sites.
V. THE CONFERENCE ON DISARMAMENT AND THE FMCT: A

HARD ROAD
As a matter of simple mathematics, the more parties there are to a
negotiation requiring consensus, the more difficult it will be to attain it. In
that sense, moving from the United Nations, with its 192 Member States,90
to the CD, with its 66 Member States,91 seems eminently reasonable. But
apparently that was not the answer, and even only 66 states is perhaps far
too large a number when it comes to attaining consensus.
Other matters have prevented the CD from beginning real negotiations
on a FMCT. First, given the relationship of a FMCT to the NPT, with its
89. Managed access, if negotiated into an agreement, permits the inspected state to protect
information from the eyes of inspectors. For example, if the state has a commercial process it has
developed, but allowing others to see it would allow others to duplicate it, the state may place
shrouds on computers, or even curtain off areas in a room. Those areas are off limits to inspectors.
90. See United Nations, at http://en.wikipedia.org/wiki/United_Nations.
91. See Conference on Disarmament, supra note 59.
eventual goal of nuclear disarmament, many states wanted to see a linkage

of some sort to nuclear disarmament. In the FMCT context, that would
mean that existing stocks would have to be addressed in the treaty,
including the draw down and possible time-bound elimination of such
stocks. These options are simply not feasible at present—either because
they are utopian or unnecessary given reductions in stockpiles that are
already occurring.
Some commentators point to the failure of the NWS to attain nuclear
disarmament in accordance with obligations pursuant to NPT Article VI,
and argue that their failure to do so weakens the nuclear nonproliferation
regime.92 The NWS will not negotiate existing stocks of fissile material
because it is not part of the Shannon Mandate.93 This issue already resulted
in a three-year delay in negotiations.94 Of course, reliance on the Shannon
Mandate can cut both ways, since it includes verification. Then in 1998,
Canadian Ambassador Mark Moher chaired an Ad Hoc Committee on a
FMCT, but it met only twice, for a total of about three weeks, before the
end of the annual CD session.95 Since the CD must agree on a work
program at the beginning of each annual session,96 once again, FMCT
negotiations came to naught.
Since then, the work of the CD has been the same—much talk and no
action. A typical example of CD results:
In 2002, the persisting deadlock over the mandate of a potential

subsidiary body to deal with nuclear disarmament prevented the
Conference on Disarmament from undertaking any substantive
work on the issue, despite widespread concern among Member
States regarding increasing prospects of nuclear weapons
proliferation and nuclear terrorism. Consequently, the issue of
nuclear disarmament was addressed only at plenary meetings where
many delegations invoked the Final Document of the 2000 Review
Conference of the Parties to the Treaty on the Non-Proliferation of
Nuclear Weapons, particularly the 13 practical steps for systematic
and progressive efforts toward nuclear disarmament. Many Western
countries emphasized that negotiations on a fissile material cutoff
92. See, e.g., Thomas Graham, Jr., International Law and the Proliferation of Nuclear
Weapons, 33 GEO. WASH. INT’L L. REV. 49 (2000).
93. Id.
94. Id.
95. The author attended portions of this session of the CD as a member of the U.S.
delegation. He was the representative of the Joint Chiefs of Staff.
96. See Conference on Disarmament, supra note 59.
treaty, together with an early entry into force of the Comprehensive

Nuclear Test Ban Treaty constituted the next essential steps to
nuclear disarmament and non-proliferation.97
Since 2002, the CD has not reached an agreement on a program of

work because China demanded linking FMCT negotiations to an
agreement on Prevention of an Arms Race in Outer Space (PAROS),98 a
thinly veiled ruse to oppose U.S. ballistic missile defense programs. The
United States, quite reasonably, offered discussions99 on the matter, noting
that by agreeing to negotiate a FMCT, the United States and the Member
States of the United Nations that joined in the resolution urging such
negotiations, had never linked a FMCT to PAROS. The United States also
noted that a treaty on outer space already exists.100
After some years of wrangling, China finally relented because the
United States agreed to discuss PAROS.101 However, in 2005, a full 13
years after President Clinton made his speech in the United Nations paving
the way for FMCT negotiations,102 virtually nothing of substance has
transpired. The CD continues its eternal squabbling, but there was one ray
of sunshine. The A-5 or Five Ambassadors103 proposal seemed to have
broken the logjam of the FMCT-PAROS linkage. This proposal was put
forward by five former CD Presidents and provided a clear mandate to
negotiate a fissile material ban, while directing an Ad Hoc Committee on
PAROS to “deal with” the issue “without limitation and without
prejudice.”104
97. 2002 Yearbook for the United Nations, 2002 U.N.Y.B. 491, Vol. 56, Dep’t of Public
Information, U.N., New York.
98. Id.
99. “Discussions” is a diplomatic term of art. Discussions are quite distinct from negotiations
in that they are specifically not negotiations. Discussions are simply that—a forum to raise ideas,
concepts, and, of course, complaints. Discussions may be limited to talks which do not lead to
actual negotiations. Negotiations, on the other hand, are intended and expected to lead to
agreements. It was reasonable for the United States to offer discussions here since it is a topic
separate and apart from the Shannon Mandate and FMCT.
100. See Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410,
T.I.A.S. No. 6347.
101. See China Accepts “Five Ambassadors” Proposal on Prevention of an Arms Race in
Outer Space as Amended, at http://www2.unog.ch/news2/documents/newsen/dc0333e.htm
[hereinafter China Accepts].
102. See Remarks, supra note 70.
103. See China Accepts, supra note 101.
104. CD/1693, Jan. 23, 2003.
In the past, the United States consistently expressed a willingness and

readiness to negotiate a FMCT in accordance with the Shannon Mandate.
Since that has not produced results, the United States has now changed its
negotiating posture in a manner arguably calculated to allow negotiations
to proceed.
Imagine being one of the sixty-six Ambassadors to the CD. In 1995,
you could have briefly participated in CD consideration of a FMCT and
then been called back to your capital to work on other matters of state for
a decade. If you were now returned to the CD for your next assignment,
you could essentially take up where you left off. While multilateral
international negotiations are well known to move at a snail’s pace,
nothing quite compares to the current CD for sheer ineffectiveness.
Perhaps it is the ultimate sinecure.
The CD itself, of course, is not really at fault but rather the
governments that provide instructions to their diplomatic delegations.
Those delegates have thus far, whether by design or happenstance, ensured
that no real negotiations have occurred on a FMCT.
VI. HOW TO ADDRESS NUCLEAR PROLIFERATION ?

A highlight of the 2004 presidential debates was a novel moment made
remarkable because both candidates agreed fully on one issue while
disagreeing on everything else. Both President Bush and Senator Kerry
concurred with the assessment that nuclear proliferation105 was the “single
most serious threat to the national security of the United States.”106
American Presidents have recognized this threat for some time.107 The
salient and pressing question for debate is: what should now be done about
nuclear proliferation and the related threat of nuclear terrorism?
105. The term “proliferation” was initially used by Secretary of State Dulles to refer to the
spread of nuclear technology to other states. This was in the context of the submission of a
disarmament proposal to the Soviet Union in 1957. See MITCHELL B. REISS, WITHOUT THE BOMB:
THE POLITICS OF NUCLEAR NON-PROLIFERATION 280 (1988). The term nonproliferation was not
in common use until the mid-1960s.
106. Statement by Senator John Kerry in response to a question from Jim Lehrer, Oct. 4, 2004.
See America’s Debate, Nuclear Non-Proliferation, at http://www.americasdebate.com/forums/
simple/index.php/t8111.html (last visited Apr. 4, 2005).
107. President Clinton issued an Executive Order declaring the proliferation of weapons of
mass destruction “an unusual and extraordinary threat to the national security, foreign policy, and
economy of the United States” in the context of a declaration of national emergency for dealing
with this threat. Exec. Order No. 12,938, 30 Wkly. Comp. Pres. Doc. 2386 (Nov. 14, 1994). That
declaration of emergency was continued several years later, 32 Wkly. Comp. Pres. Doc. 2384 (Nov.
12, 1997) and in fact has been continued annually thereafter.
Traditional arms controllers seek international agreements on nuclear

nonproliferation and the involvement of international organizations to
increase security and provide protection from nuclear terrorism and other
threats. Of course “traditional” arms control negotiators had no need to
consider the threat posed by nuclear terrorists, which is a relatively new
phenomenon.
But many senior American policy makers have lost confidence in the
value of the proverbial “piece of paper” as a basis for national security.108
As a general rule, however, a treaty is truly more than just a piece of paper.
No state can afford a reputation of failing to observe treaty commitments,
regardless of the subject matter of the agreement. If a state were to do so,
the vast majority of other states would likely consider it a pariah and break
off both commercial and diplomatic relations. Such actions by other states
in this interconnected world would exact a terrible economic, political and
developmental toll on that outlaw state.
Even so, there are a few states that do not honor commitments in spite
of the inevitable retribution. This seems to be especially so where the
subject concerns the pursuit of nuclear weapons and other WMD. Such
states take on significance and focus out of all proportion to their
economic, diplomatic and military heft when WMD is the issue.109 The
United States must focus on the few renegade states in pursuit of nuclear
weapons since, unfortunately, it is a likely target if such weapons are ever
produced or acquired.
This is why President Bush has made abundantly clear that waiting to
be attacked is no longer a rational strategy:
We cannot defend America and our friends by hoping for the best.
We cannot put our faith in the word of tyrants, who solemnly sign
108. “From the perspective of political realism, or in its less formal guise, realpolitik,
international law has no intrinsic power of its own and is ultimately irrelevant to questions of high
politics. From a realist perspective a treaty is a “mere scrap of paper.” SHIRLEY V. SCOTT, THE
POLITICAL INTERPRETATION OF MULTILATERAL TREATIES 3 (2004). See also Jesse Helms, This
Treaty Was Dangerously Irresponsible, Oct. 18, 1999 available at http://www.centerforsecurity
policy.org/index.jsp?section-papers&code=99-F_26. Senator Helms noted that, in rejecting the
CTBT “[t]he new president must have a free hand to re-establish American credibility on
nonproliferation matters—credibility not based on scraps of paper, but on clear resolve, a credible
nuclear deterrent and real defenses against ballistic missile attack.” Id. (emphasis added). Of course,
the failure to attain the Senate’s advice and consent may have simply been due to an insufficient
effort by the Administration. Many experts believed that the CTBT was verifiable.
109. North Korea, for example, without nuclear weapons, would not often be “front page”
news.
non-proliferation treaties, and then systematically break them. . . . If

we wait for threats to materialize, we will have waited too long.110
Indeed, “if and when” a nuclear device is detonated in a metropolitan

area,111 or anywhere on American soil, such agreements will appear to
have been quite ineffective. In hindsight, preemptive strikes112 would
surely have appeared wiser than treaty negotiations. But since we are
fortunately still in the stage of foresight, the United States should give due
consideration to all options, including nonproliferation negotiations and
preparations for preemptive strikes. Even though both have limitations
individually, together, they form a substantial bulwark of defense and a
viable national security strategy.
VII. NATIONAL SECURITY , NONPROLIFERATION , AND COUNTER -

PROLIFERATION
There are only two existing responses to nuclear proliferation, and both
have their limitations. Nonproliferation is one viable method, the other is
counter-proliferation. Nonproliferation includes international agreements,
threat reduction and other defensive, passive measures to prevent
proliferation.113 Counter-proliferation is generally defined as a military,
assertive, offensive method of terminating proliferation.114
The Proliferation Security Initiative (PSI)115 has elements of counter-
proliferation and nonproliferation incorporated and may prove to be one
110. President George W. Bush, Speech at West Point, June 1, 2002, available at
http://www.whitehouse.gov/news/releases/2002/06/print/20020601-3.html. See also President
George W. Bush, Address to the Nation, 39 Wkly. Comp. Pres. Doc. 338, 340 (Mar. 24, 2003)
(where President Bush noted that the United States was attacking Iraq preemptively to meet the
threat now “before it can appear suddenly in our skies and cities.”).
111. ALLISON, supra note 5, at 6. Retired General Eugene Habiger, a former Department of
Energy Director of the Office of Security and Emergency Operations stated, with regard to nuclear
terrorism, that “it is not a matter of if; it’s a matter of when.”
112. The “Bush Doctrine” has expanded the international law right of preemption in the face
of an imminent attack into a right of preventive war against potential attack. See Richard Gardner,
Neither Bush Nor the “Jurisprudes,” 97 AM. J. INT’L L. 585, 587 (2003).
113. Proliferation is the spread of knowledge or materials related to a specific type of weapons
system to other states or non-state actors. ERIC A. CRODDY ET AL., WEAPONS OF MASS
DESTRUCTION 294 (2005).
114. Counter-proliferation includes the full range of military measures and actions conducted
to reduce and protect against nuclear, biological and chemical weapon threats. See WEAPONS OF
MASS DESTRUCTION, AN ENCYCLOPEDIA OF WORLDWIDE POLICY, TECHNOLOGY, AND HISTORY,
Nuclear Weapons, at 80 (Eric A. Croddy & James J. Wirtz eds., 2005).
115. See Proliferation Security Initiation, at http://www.state.gov/t/np/c10390.htm.
of the more useful innovations of the last fifty years. This new initiative
of the Administration seeks to establish cooperative partnerships
worldwide to prevent the flow of WMD, delivery systems and related
materials to and from states and non-state actors of proliferation concern.
The first three shipboarding agreements under PSI were signed in 2004
with Liberia, Panama and the Marshall Islands.116
The Israeli strike on the Osiraq nuclear reactor in Iraq was an example
of successful counter-proliferation.117 On June 7, 1981 the Israeli Air Force
launched a lightning raid on the French designed Iraqi reactor that was
then nearing completion at Tuwaitha.118 The strike completely destroyed
the reactor just before it attained operational capability.119 This military
strike effectively eliminated the Osiraq threat in moments. Counter-
proliferation thus yields more immediate, visible and measurable results
than protracted nonproliferation treaty negotiations.
The Israelis may well have invented nuclear counter-proliferation by
this strike, executed with textbook military precision. The ultimate result
of this action was to set back the Iraqi nuclear weapons program for many
years.120 Still, some argue that the strike was counterproductive in that it
also reinforced the Iraqi desire to attain nuclear weapons.121
While the Israeli bombing raid was widely condemned at the time, in
hindsight it appears to have been viewed as appropriate by
commentators.122 Many observers of the Middle East today wonder if
Israel will launch a similar counter-proliferation strike on Iranian nuclear
116. See U.S. Dep’t of State, Liberia Proliferation Security Initiative, at

http://www.state.gov/t/np/c12387.htm. For the full text of the agreement with Liberia, see U.S.
Dep’t of State, Proliferation Security Initiative Ship Boarding Agreement with Liberia, at
http://www.state.gov/t/np/trty/32403.htm.
117. See Israel’s Osirak Attack. McNair Paper 41, May 1995, available at
http://www.au.af.mil/au/awc/awcgate/mcnair41/41osi. htm.
118. Id.
119. Id.
120. Id.
121. See William Claiborne, Israeli Planes Bomb Major Iraqi Nuclear Facility, WASH. POST,
June 9, 1981, at A1; Thomas O’Toole, Plant Was to be Ready Within Month, WASH. POST, June
9, 1981, at A12.
122. See Jeremy Tamsett, The Israeli Bombing of Osiraq Reconsidered: Successful
Counterproliferation?, 11 NONPROLIFERATION REV. 70 (2004). The author argues that the Israeli
raid on the Osiraq nuclear facility at al-Tuwaitha has been proven by history to have been the
correct action. Had Israel not destroyed Osiraq, the Iraqis would likely have had several nuclear
weapons at the start of the Gulf War in 1991.
facilities before Iran is capable of manufacturing nuclear weapons.123 Such

an attack is far more problematic than the Iraqi strike given the greater
distance Israeli jets would have to travel and advances in air defense
technologies. Other difficulties also exist. For example, in Iraq there was
only one facility, which was susceptible to attack, while in Iran, there is
uncertainty regarding the full scale of its nuclear program.
Given the emerging terrorist, North Korean, and Iranian actions, what
steps should senior officials in the Administration now take? Are nuclear
nonproliferation negotiations still relevant or should they be relegated to
the dustbin of history? Even arms control enthusiasts admit to the failures
of arms control to effectively strengthen the BWC, negotiate a FMCT, and
to obtain Additional Protocol agreements for more states with the IAEA.124
Many believe that the next step the international community should take
is to negotiate a FMCT, a classic treaty-based nuclear nonproliferation
measure.125
Military preemption126 and counter-proliferation solutions to the vexing
problem of nuclear proliferation can and should work together with
international agreements such as FMCT. But because military solutions are
more difficult and costly, and often have harmful side effects,
nonproliferation solutions should be pursued when possible. There is no
need for one solution to operate to the exclusion of the other. Regardless,
more action must be taken now. The threat of nuclear proliferation is too
great to forsake any available measures which may ameliorate the nuclear
danger as dark storm clouds gather on a foreboding horizon.
We need a better strategy, an integrated one that will make it far

harder, more time consuming, and extremely expensive for the
current and future nuclear threshold countries to acquire more
significant nuclear weapons capabilities and that will instead
123. See Joseph Farah, U.S., Israel to Attack Iran Nukes ‘Before April,’
WORLDNETDAILY.COM, Jan. 23, 2006, at http://www.worldnetdaily.com/news/article.asp?
ARTICLE_ID=48430
124. John Freeman, Is Arms Control Law in Crisis?, 9 J. CONFLICT & SEC. L. 303, 308 (2004).
In fact, the Additional Protocol is doing rather well. Currently 107 states have signed and 73 have
ratified it.
125. The international community has been busy slowly negotiating the Convention on the
Suppression of Acts of Nuclear Terrorism, which, after seven years of negotiations at the United
Nations, appears to have finally been completed. Maggie Farley, Nuclear Terror Pact Advances,
L.A. TIMES, Apr. 2, 2005, at A3.
126. Military preemption is the larger context of action a state may take to address a looming
military threat, such as troops massing on the border. Counter-proliferation is a smaller subset of
this concept dealing exclusively with the preemption of WMD development.
provide them with a politically attractive and legally binding means

to keep their existing capabilities limited, at least pending
developments in regional security which might induce them to
abandon their nuclear weapons capabilities.127
The stakes are now so high that any strategy employed by the United
States must utilize all available elements of power in military and
diplomatic realms. This means that nonproliferation and counter-
proliferation measures should be integrated, as appropriate, to produce the
most complete national security strategy that can be mustered. FMCT can
be a viable aspect of this strategy.
Arms control and nonproliferation agreements still have an essential
role to play in preventing nuclear proliferation and FMCT can illustrate
this importance. That role, when accompanied by other means of ensuring
and enhancing national security such as a muscular and visible counter-
proliferation threat, will provide the United States with the best defense
available.128
There are many reasons advanced in favor of a FMCT by its
proponents. They cite it as a disarmament and nonproliferation tool, which
would halt further production and add transparency and accountability to
the large stockpiles of fissile material worldwide.129 It would prevent a
future nuclear arms race and reinforce the commitments of NWS and
NNWS under the NPT. In so doing, it would reduce proliferation risks, to
include the risk of nuclear terrorism while respecting state’s rights to use
nuclear energy for peaceful purposes.130
The United States remains a proponent of FMCT as noted by its recent
statement:
We have called upon the Conference on Disarmament to initiate

negotiations on a Fissile Material Cutoff Treaty. We believe that an
FMCT would help to promote nuclear non-proliferation by
establishing the universal norm that no state should produce fissile
material for weapons. For its part, the United States ceased
production of fissile material for weapons purposes nearly two
127. Williamson, supra note 2, at 75-76.

128. See Jack M. Beard, America’s New War on Terror: The Case for Self-Defense Under
International Law, 25 HARV. J. L. & PUB. POL’Y 559 (2002).
129. Id.
130. Jean Du Preez, The Future of a Treaty Banning Fissile Material for Weapons Purposes:
is it Still Relevant? The Weapons of Mass Destruction Commission, 2005, available at http://www.
wmdcommission.org.
decades ago. Today we reiterate the call we issued last year at the
CD for all nations committed to the FMCT to join us in declaring
a moratorium on fissile material production for weapons purposes
until a binding FMCT has been concluded and entered into force.131
But pursuit of a FMCT does not obviate other measures. Military force
and counter-proliferation send a clear message to proliferators. Many
believe that the American attack on Iraq directly contributed to the Libyan
voluntary surrender of its nuclear weapons program.132 After all, the attack
was based, in part, on Iraqi possession of WMD that could be given to
terrorist groups capable of using it to attack the United States,133 and Libya
was viewed in a similar manner. Others might argue, however, that the
U.S. attack on Iraq accelerated the North Korean and Iranian quest for
nuclear weapons.
While that view is not universally held,134 Libya almost certainly did
not unilaterally disarm merely to observe international norms, which it had
broken to begin with. Rather, the author believes it likely relinquished the
millions of dollars, (that it could scarcely afford), invested in the pursuit
of nuclear weapons, to avoid a military strike.
There are a number of theories regarding why Libya disarmed, ranging
from a commitment to international norms to economic and demographic
factors applying domestic political pressures on the Libyan government to
engage the international community.135 While the likely explanation for the
Libyan policy reversal includes a number of factors, the author believes
that the March 2003 military action against Iraq, justified in part to prevent
Iraq from acquiring WMD, strongly factored in to the Libyan calculus to
abandon its WMD programs. After the October 2003 interception of a ship
bound for Libya containing uranium enrichment components,136 the Libyan
government likely feared the possibility that this would serve as a
131. Stephen G. Rademaker, U.S. Assistant Secretary of State for Arms Control, U.S.
Statement at the 2005 NPT RevCon, May 2, 2005, at http://www.state.gov/t/ac/rls/rm/45518.htm.
132. Iraq War Prompted Libya to Give Up Weapons, Dec. 21, 2003 [hereinafter Iraq War],
available at http://www1.voanews. com.
133. See Winston P. Nagan, The Bush National Security Doctrine and the Rule of Law, 22
BERKELEY J. INT’L L. 375, 420 (2004); see also Miriam Sapiro, Future Implications of the Iraq
Conflict: The Shifting Sands of Preemption and Self-Defense, 97 AM. J. INT’L. L. 599 (2003).
134. Some believe that Libya unilaterally disarmed in order to obtain long-term diplomatic
and economic benefits and to rid itself of the rogue state image. See Sammy Salama, Was Libyan
WMD Disarmament A Significant Success For Non-Proliferation?, at http://www.nti.org/e_
research/e3_56b.html.
135. Id.
136. Id.
justification for American forces, already positioned in the region, to

launch an attack on Libya.
The open source news highlights varying rationales for Libya’s
voluntary disarmament. Britain’s Defense Minister does not believe that
the Libyan action can be separated from the military action in Iraq.137
Deputy Secretary of State Armitage stated that Libyan actions were the
long-term fruit of persistent policies aimed at bringing Libya into the
mainstream.138 Yet at the same time he noted that their decision may have
been affected by the Bush Administration’s “muscular multilateralism.”139
Others opined that ten years of sanctions had finally taken their toll on
Libya.140
Whether such military action was in the planning or preparation stages,
or was never seriously contemplated, the world will never know, but today
it is irrelevant. Libya now indeed appears on a path toward being a
responsible state fully prepared to honor its nonproliferation commitments.
Nuclear nonproliferation agreements, while important, must be viewed
as simply one more means to accomplish the end of national security.
While such agreements are not a panacea, they can make major
contributions and deserve to be appropriately integrated into the national
security strategy.
VIII. FMCT AND THE NONPROLIFERATION REGIME

For a variety of reasons, an agreement halting the production of fissile
material for nuclear weapons is a logical next step in efforts to prevent the
further proliferation of nuclear weapons. One significant problem
requiring resolution is that the amount of fissile material outside of nuclear
weapons is increasing, a result of U.S.-Russian nuclear arms reductions.
While this seems counterintuitive, as nuclear weapons are dismantled, the
HEU or Pu removed from the weapons is accumulating and must be
securely stored until it can be properly disposed of.141 As the amount of
137. See Iraq War, supra note 132.

138. See State’s Armitage Attributes Positive Developments to Steadfast Policies, Dec. 24,
2003, at http://www. globalsecurity.org/military/library/news/2003/12//mil-031224-usia03.htm.
139. Id.
140. The Colonel Capitulates, Dec. 23, 2003, at http://www.globalsecurity.org/wmd/library/
news/libya/wwwh31225.htm.
141. The disposition of fissile materials can be a complex and expensive process. It is
relatively simple to dispose of HEU by downblending it to Low Enriched Uranium (LEU) through
the addition of natural uranium, such that it is not suitable for use in a nuclear weapon, but is
appropriate for use in commercial nuclear power reactors, and as such has commercial value. Pu,
on the other hand, is more difficult to denature. It could either be mixed with highly radioactive
fissile material existing outside of nuclear weapons increases, similarly

opportunities for terrorists to steal and possibly use it in a nuclear attack
increase.142 It has few other uses. In the absence of a FMCT, these stocks
and associated proliferation dangers will continue to grow.
Security is invariably very tight on nuclear weapons, but even the
United States has lost a nuclear weapon, albeit long ago, in a training
mission.143 Security tends to be less rigid on non-weaponized fissile
material.144 Russia has literally hundreds of tons145 of fissile material
suitable for use in nuclear weapons, and considerable quantities are poorly
guarded and secured.146 Russia is still operating three nuclear reactors that
produce weapons-suitable Pu, although they will be shut down soon with
American assistance.147
Unfortunately, it does not take tons of HEU or Pu to make a nuclear
weapon—it takes considerably less. The IAEA estimates that as little as
fission products from spent fuel or be irradiated in a reactor making it intensely radioactive and thus
unsuitable for use in a weapon. See Barry Kellman & David S. Gualtieri, Barricading the Nuclear
Window–A Legal Regime to Curtail Nuclear Smuggling, 1996 U. ILL. L. REV. 667.
142. Theft or purchase of stolen nuclear weapons is the simplest means for terrorists to procure
them. If a terrorist group were to acquire fissile material, it could likely produce an improvised
nuclear device or a radiological dispersal device. Even with information widely available on the
mechanics of nuclear weaponry, the production of a nuclear weapon and especially the fissile
material component of a weapon, would be very difficult for most terrorist groups.
143. Clark Rumrill, Lost: One H-Bomb. Call Owner, WASH. POST, Apr. 17, 2005, at D1. The
article discusses a U.S. Mark 15 nuclear weapon lost in 1958 off the coast of Georgia during a U.S.
Air Force training mission. It is suspected to be buried 5-15 feet below the seabed, and has never
been recovered despite intensive search and recovery efforts. A number of other U.S. and Russian
nuclear weapons have also been lost.
144. ALLISON, supra note 5, at 211.
145. Best estimates are that Russia has 130-145 tonnes (a tonne is a metric ton) of Pu and
1,010-1070 tonnes of HEU for defense requirements. Total estimated global inventories are 1,720-
1843 tonnes of HEU and 263 tonnes of Pu. See Frank Barnaby & Nick Ritchie, The FMCT
Handbook: A Guide to a Fissile Material Cut-off Treaty, at http://www.oxfordresearchgroup.org.
uk/publications/books/fmcthandbook.htm; Production and Status of Military Stocks of Fissile
Material, end of 2003, at http://www.isis-online.org/mapproject/supplements.html [hereinafter ISIS
Table].
146. Steve Coll, Nuclear Goods Traded In Post-Soviet Bazaar: Export Controls Lacking On
Russia’s Rim, WASH. POST, May 15, 1993, at A1. See also GAO Report, Nuclear Nonproliferation:
Limited Progress in Improving Nuclear Material Security in Russia and the Newly Independent
States, Mar. 2000, available at http://www.gao. gov/archive/2000/r400082.pdf.
147. The U.S. Department of Energy’s National Nuclear Security Administration runs the
Elimination of Weapons Grade Plutonium Program, which will pay for the shutdown of Russia’s
three remaining plutonium production reactors and replace them with conventionally powered fossil
fuel plants. See Elimination of Weapons Grade Plutonium Production (EWGPP), at
http://www.nnsa.doe.gov/na-20/ewgpp.shtml.
55 pounds (25kg) of HEU (U-235) or 17.6 pounds (8kg) of Pu-239 are all
that is needed to make a nuclear weapon.148
Much of the Russian HEU is being downblended to Low Enriched
Uranium (LEU) for use in commercial nuclear power plants.149 Indeed,
nuclear power seems on the threshold of a revival as even strident
environmentalists realize that nuclear power is the only concentrated and
efficient energy source that does not cause global warming.150
When one considers the progression of multilateral agreements, to the
extent that there is any such measuring stick, progress might take the
following route: political statement, political commitment, non-legally
binding agreement, legally binding agreement, legally binding amendment
to strengthen the original binding agreement. Or, a treaty could be
negotiated without any verification provisions, and such provisions are
negotiated at a later date. For example, the Biological Weapons
Convention (BWC), was negotiated in 1972 but lacked a verification
regime.151 It was preceded by political commitments to renounce
biological weapons.152 In 1986 at the second BWC conference, states
adopted four “politically binding”153 confidence building measures. It took
until the 1990s for states to begin considering legally binding methods of
BWC verification and for negotiations to begin on a verification regime.154
None has been agreed to thus far, primarily because the BWC is viewed
as effectively unverifiable.
Similarly, the Chemical Weapons Convention (CWC) was preceded by
a host of unilateral and bilateral political commitments to renounce
chemical weapons starting with President Nixon’s unilateral renunciation
148. ALLISON, supra note 5, at 211.

149. See Highly Enriched Uranium (HEU) Purchase Agreement Transparency Implementation,
at www.nnsa.doe.gov/NA-20/heu_trans.shtml.
150. Nicholas D. Kristof, Nukes Are Green, N.Y. TIMES, Apr. 9, 2005, at A9. See also John
Ritch, The Key to Our Energy Future, WASH. POST, Apr. 26, 2005, at A15. Increased blackouts and
brownouts have also given greater support to nuclear power.
151. See BWC, supra note 65.
152. See BWC Issue Brief: The Biological Weapons Convention, at http://www.nti.org/e_
research/e3_28a.html.
153. A political commitment, while not legally binding, is still substantial. Since a government
publicly commits to do or refrain from taking certain actions, it places the government’s reputation
on the line. Such commitments tend to be honored. And when they are honored, they are as
effective as a treaty commitment. The major difference is that a political commitment may be
forsaken overnight, since it involves a mere policy change by the government. Withdrawing from
a treaty is a far more significant step, and most treaties usually require notice and a waiting period
prior to withdrawal.
154. See Chemical and Biological Weapons Chronology, at http://www.fas.org/nuke/control/
bwc/chron.htm.
of chemical and biological weapons in 1969.155 In 1980, the U.N.

Committee on Disarmament began work on a CWC.156 In 1985, chemical
weapon export controls were put into place and in 1989 the Soviet Union
announced that it was commencing destruction of its chemical weapons
stockpile.157
The conceptual FMCT breezed through the political statement and
political commitment stages. Since it has maintained significant
international political support for so long, a FMCT was widely viewed as
ready to move immediately to the legally binding stage, or so it was
thought ten years ago. But that has not been the case, since it has
floundered since then.
Nations have interests that they do not always wish to publicly disclose.
If, for example, a nation such as China did not wish to sign the FMCT
because it had not yet determined how much fissile material is needed for
its strategic requirements, then the answer would be to simply stall for
time. That would be accomplished by China instructing its diplomats to
publicly support FMCT, but to tie it to events that other nations are known
to oppose, resulting in a deadlock. China surely caused a deadlock by
linking FMCT to PAROS which the United States is known to oppose. But
no one knows for certain if this was truly its reason for doing so.
Because a FMCT is a proposed treaty of vital importance, that has now,
regardless of the reason, been stalled for over a decade, something
significant must change for negotiations to begin in earnest. To some
extent, that is a rhetorical statement. At this point, any movement would
be welcome, since even glacial progress would improve upon the status
quo. The Administration’s non-verification approach may well prove to be
the antidote to the current deadlock. This new position should finally spark
action and allow international negotiations on a FMCT to proceed.
Verification, international negotiators may soon learn, may have been the
unstated objection of many nations to a FMCT. Others, however, may
regard verification as essential to achieving the benefit of a FMCT.
IX. WHY PURSUE A FMCT?

Nuclear proliferation poses grave and unique dangers to the United
States and other nations. The dangers include: increased risk of widespread
casualties if a nuclear weapon is employed; the possibility of accidental
155. Id.
156. Id.
157. Id.
nuclear war, nuclear civil war, or nuclear terrorism; a reduction in the

relative strength of the United States and other major powers.158 There are
other serious consequences as well, such as undermining of the chance of
greater reliance on international peacekeepers; diminished prospects for
arms control; increased pressure on the United States to develop responses
that may themselves be dangerous, expensive and destabilizing; and the
potential for reining in civil liberties.159
While a FMCT will not solve all of those problems, by capping the
amount of fissile material available for nuclear weapons use, it will limit
the opportunity for those dangers to manifest themselves.
The United States has worked hard, and will no doubt continue to do
so, to provide nations with incentives to forgo acquiring nuclear weapons,
or, if they have them, to relinquish them. Occasionally, as in the cases of
South Africa, Ukraine, Belarus, and Kazakhstan, the efforts are
successful.160 Sometimes, as in the cases of North Korea and Iran, such
efforts have yet to succeed, although there was a recent breakthrough with
North Korea prior to its nuclear test.161 Now the United States faces the
prospect that regional aggressors, third-rate armies, and terrorists may
wield power disproportionate to their numbers or strength through the use,
or threat of use, of nuclear weapons.162
If Iran does not soon dismantle its nuclear fuel cycle program, as Libya
has done, it may find that certain other states are unwilling to accept its
ludicrous assertions of peaceful intent and may therefore reasonably
consider more forceful measures for lack of better alternatives.163 Of
course, a range of measures, including sanctions, may be employed prior
to military preemption. Thus, it is possible that a FMCT could prevent or
at least forestall preemptive attacks and the war that might ensue as a
result.
158. Williamson, supra note 2, at 87–93 (providing an excellent analysis of each of the
dangers listed above).
159. Id.
160. South Africa dismantled its six nuclear weapons and joined the NPT as a non-nuclear
weapon state. Roger Molander & Peter Wilson, On Dealing With the Prospect of Nuclear Chaos,
17 WASH. Q. 19, 30 (1994). The list of states that sought nuclear weapons, but terminated their
programs is even longer, including Argentina, Brazil, South Korea, Taiwan, Libya, Sweden, and
Switzerland.
161. Glenn Kessler & Edward Cody, N. Korea, U.S. Gave Ground to Make Deal, WASH. POST,
Sept. 30, 2005, at A1.
162. Office of the Secretary of Defense, Proliferation: Threat and Response (1997).
163. See generally Guy B. Roberts, The Counterproliferation Self-Help Paradigm: A Legal
Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction, 27
DENV. J. INT’L L. & POL’Y 483 (1999).
Pursuit of a FMCT has remained a goal at the United Nations since

1993.164 The U.N. General Assembly has routinely called for the
negotiation and conclusion of an FMCT.165 Most often, a discussion of the
FMCT occurs in the context of the NPT, although it is mentioned in other
contexts as well. The NPT is a remarkably enduring and successful
treaty.166 It has been described as comparable in stature to the U.N.
Charter.167 At the NPT Review Conferences,168 the parties have also
reached consensus on the need for FMCT in the Final Documents.169 The
2005 Review Conference (RevCon), having recently concluded, was
unable to attain consensus on a Final Document, so the views of the 2005
RevCon on FMCT are not a matter of record.170
Many commentators continue to weigh-in supporting negotiations on
FMCT, including former President Jimmy Carter, who recently wrote to
urge FMCT negotiations as one step among several required to save the
nonproliferation regime.171 Similarly, the Carnegie Endowment for
International Peace released a statement prior to the 2005 RevCon by “The
Campaign to Strengthen the Nuclear Nonproliferation Treaty.”172 The
statement urges, inter alia, a permanent end to the production of fissile
material for nuclear weapons.173 It is signed by a host of luminaries
including former Secretary of State Madeleine Albright, former arms
control ambassadors and senior government officials.174
Since the United States voluntarily terminated production of fissile
material for nuclear weapons in 1992,175 as have Russia,176 the United
164. See G.A. Res. 48/75L, supra note 73.

165. Id. at 83.
166. See supra text accompanying note 27.
167. RICHARD BUTLER, FATAL CHOICE: NUCLEAR WEAPONS AND THE ILLUSION OF MISSILE
DEFENSE 52 (2001).
168. See NPT, supra note 27, art. X(2). Review Conferences (RevCon) are held every five
years, to review the status of the treaty. These conferences are held at the United Nations in New
York. The author attended the 2000 RevCon as a member of the U.S. delegation.
169. See NPT 2000 RevCon, supra note 84.
170. Charles J. Hanley, No Nonproliferation Plan Offered; 188-Nation Talks on Nuclear Arms
Fail to Produce Consensus, WASH. POST, May 28, 2005, at A20.
171. Jimmy Carter, Saving Nonproliferation, WASH. POST, Mar. 28, 2005, at A17.
172. See The 2005 NPT Review Conference and Beyond, Proliferation Brief, Vol. 8, No. 3,
Apr. 6, 2005 at http://www.carnegieendowment.org/npp/weapons/index.cfm?fa=view&id=
3000098.
173. Id.
174. Id.
175. See U.S. Statement to NPT Preparatory Committee Meeting, Apr. 11, 1997, at
http://www.fas.org/nuke/control/npt/docs/97041101.htm.
176. The United States and Russia have both announced full or partial cessation of the
production of HEU and Pu for weapons. See ISIS Fact Sheet, at http://www.isis-
Kingdom and France,177 signing a FMCT would only make the status quo
currently based upon political commitments, into a legal obligation for
these nations. For many other states, though, this would undoubtedly
provide them with an important assurance of progress in the
nonproliferation sphere and also in terms of providing a cap on the fissile
material currently existing in the NWS, assuming that no cheating
occurred. This is because if a state has a policy of producing no more
fissile material, the policy can change overnight. If that policy, however,
is based upon a treaty commitment (particularly and admittedly one that
includes verification arrangements), it is viewed as far more enduring and
therefore meaningful and reassuring to other states.
From an American perspective, limiting arsenals to existing stocks,
defined as the fissile material it produced prior to a FMCT entry-into-
force, is a fairly significant measure that many in the national security
arena may not favor. Therefore, at a minimum, in order to enter into a
FMCT, the United States must determine that its stocks are adequate to
meet any future military requirement, especially for a treaty of
potentially—unlimited duration.
There would be gains. China, the only NWS that has not formally
declared a moratorium on fissile material production, would agree to cap
its production of fissile material by adhering to a FMCT.178 This would be
highly significant, given that China is a “strategic competitor” of the
United States and is rapidly expanding its military might.179 Since China’s
existing stocks of fissile material are much smaller than American or
Russian existing stocks,180 this would be an important commitment. China
is currently estimated to possess 4.8 tonnes of Pu and twenty tonnes of
HEU.181
online.org/publications/ fmct/book/fs31.html. The United States has not required HEU for weapons
since 1964. Id. The U.S. HEU inventory is estimated at 500 tons. Id. Michael Knapik, DOE
Assessing Various Options for Inventory of High-Enriched Uranium from Retired Weapons,
NUCLEAR FUEL, Apr. 1, 1991, at 1. Russia stopped producing HEU for weapons purposes, also.
Gorbachev Halts Uranium Output, L.A. TIMES, Apr. 7, 1989, at A1 [hereinafter Gorbachev Halts].
177. Gorbachev Halts, supra note 176, at A1.
178. It is uncertain whether China is still producing fissile material. It is believed that China
has not declared a production moratorium like the other NWS in order to allow it to keep its options
open in this matter.
179. See Tony Karon, Bush China Policy Defaults to Engagement, TIME, July 31, 2001,
available at http://www.time.com/time/columnist/karon/article/0,9565,169585,00.html. See also
Edward Cody, China Builds a Smaller, Stronger Military, WASH. POST, Apr. 12, 2005, at A1
(noting that China’s modernization of its military could alter the regional balance of power, thus
raising the stakes for the United States).
180. See ISIS Table, supra note 145.
181. See id. Another view is that China will not accede to a FMCT until it has produced
A FMCT would also constrain Chinese nuclear modernization and

increase Chinese and Russian nuclear transparency.182 Finally, it would
demonstrate significant support for the NPT and the obligations the NWS
agreed to in that forum.183
Coincidentally, China is the state most responsible for blocking
progress on an FMCT at the CD.184 While it claims to have blocked
progress in order to attain an agreement prohibiting the militarization of
outer space,185 extensive verification arrangements would likely be
anathema to this secretive, communist state.186
China, however, will be a key player in any FMCT negotiations. With
all of the U.N. groups and coalitions, including the P-5, the Non-Aligned
Movement,187 the Western European and Others Group,188 the New
Agenda Coalition,189 and others, China is known as the “Group of One” in
that it leans toward isolationism and views its interests as unique.190
enough fissile material to rival the United States. Id. If this were indeed the view of such countries
as China, Iran and North Korea, and those states hypothetically planned to make many more
nuclear weapons before acceding to a FMCT, then one might rationally inquire whether a FMCT
would make the world a safer place.
182. Id.
183. Telephone interview with Dr. Lewis A. Dunn, Apr. 27, 2005 [hereinafter Dunn].
184. Id.
185. Id.
186. See NTI, China Profile, at http://www.nti.org/e_research/profiles/china/index.html
(showing a more nuanced view).
187. The Non-Aligned Movement, or NAM, includes such nations as Indonesia, Egypt, Iran,
and South Africa. See The Non-Aligned Movement: Background Information, at http://www.
NAM.gov.ZA/background/background.htm. While they claim to be non-aligned, which implies
some degree of impartiality, they are in fact rabidly anti-nuclear, and they are closely aligned
among themselves against the NWS. See, e.g., Alyn Ware, NGO and Government Cooperation in
Setting the Disarmament Agenda: The Impact of the 1996 International Court of Justice Advisory
Opinion, at http://www.disarmsecure.org/publications/papers/ngo_government. html.
188. This group, known as the WEOG, includes such states as Australia, Canada, Israel, and
Norway. See Western European and Others Group, at http://www.wikipedia.org/wiki/Western_
European_and_Others_Group.
189. The New Agenda Coalition (NAC), comprising the representatives of Egypt, Ireland,
Mexico, New Zealand, South Africa, Sweden, and Brazil has been an outspoken advocate of faster
nuclear disarmament by the NWS. See 8-State Call for New Nuclear Disarmament Agenda, at
http://www.acronym.org.uk/27state. htm. They have expressed their “deep concern at the lack of
progress to date in the implementation of the thirteen steps on nuclear disarmament” agreed to by
all states parties at the 2000 NPT RevCon. See Declaration of the Ministers of the New Agenda
Coalition, New York, Sept. 23, 2003, available at http://www.wagingpeace.org/articles/2003/09/
23_minister_declaration.htm (last visited Apr. 10, 2004). One of the 13 steps was negotiation and
conclusion of a FMCT within five years. Id.
190. See A Brief History of FMCT, at http://www.oxford researchgroup.org.uk/publications/
books/handbook/ch2.pdf (noting that China often refers to itself as a “Group of One”).
Certainly the main reason that a FMCT would be so attractive,

however, is that if India and Pakistan became FMCT parties, it would cap,
assuming full compliance, fissile material production in those states. They
are the only states along with Israel and North Korea not party to the NPT,
or any related nonproliferation treaties, and that operate free of any
constraint on their nuclear weapons programs.191 The involvement of those
states would be a significant achievement, and in fact, many nations may
demand the accession of those states to a FMCT as a prerequisite for
entry-into-force.192 Negotiators would, of course, need to exercise caution
to avoid a CTBT-type entry-into-force problem. The CTBT has not yet,
and may never enter-into-force since it requires the ratification of 44
states—only 33 have done so. But some view the accession of those states
as plausible: by eradicating most safeguards193 distinctions between the
nuclear-weapon and non-weapon states, and by including China, a cutoff
could appeal to India. By constraining India, it could appeal to Pakistan.
By strengthening the international commitment not to allow states such as
Iraq, Iran, and Libya to produce unsafeguarded fissile material (or indeed
any weapons-usable fissile material), a cutoff could also appeal to Israel.
The result would be a critical strengthening of international norms against
proliferation.194
191. There are many reasons to wish to constrain the nuclear weapons programs of the non-
NPT states. As states become nuclear weapons capable, history has clearly illustrated that one
nuclear weapon is never enough. The tendency is to construct more militarily significant nuclear
weapons. Typical of such efforts are: increases in the size of the nuclear arsenal; increases in
explosive power; reduced requirements for special nuclear material; enhanced deliverability;
greater safety and survivability; and the acquisition of enhanced delivery systems. See Williamson,
supra note 2, at 93-106.
192. If a FMCT was negotiated as a non-legally binding political commitment, there would
be no entry-into-force requirement to grapple with. Nonetheless, the United States takes its political
commitments nearly as seriously as its treaty and legal obligations.
193. Safeguards are a technical means of ensuring that no nuclear material is being diverted
from civil uses to covert nuclear weapons programs. The term is generally used in conjunction with
monitoring of nuclear sites performed by inspectors of the International Atomic Energy Agency
(IAEA). Basic IAEA safeguard methods include verification, auditing and accounting. IAEA
inspectors may apply tags, seals, and camera monitors to nuclear production sites. Specific
safeguards arrangements are negotiated between a state and the IAEA. There are two types of
safeguards: “fullscope,” which applies to all nuclear material in the state, or more limited
safeguards applicable only to certain material. The term “unsafeguarded,” conversely, means that
the IAEA is not able to verify that no nuclear material is being diverted to weapons uses.
Safeguards are performed according to negotiated agreements between the IAEA and NPT non-
nuclear weapon states. Such agreements are based upon The Structure and Content of Agreements
Between the Agency and States Required in Connection with the Treaty on the Nonproliferation of
Nuclear Weapons, IAEA Doc. INFCIRC/153 (May 1971) [hereinafter INFCIRC 153].
194. Frans Berkhout et al., A Cutoff in the Production of Fissile Materials, 19 INT’L SECURITY
It is axiomatic that for the above countries to be willing to accept a

FMCT, they would also need to be convinced of a national security
benefit, especially compliance of rivals, neighbors, or other state
signatories.195 Yet that might only occur through an intrusive verification
regime, which the United States and the non-NPT states are currently
unlikely to accept. Therein lies the rub. This is also why the
Administration has taken the wisest course in opposing verification:
The development of effective as well as politically-acceptable and

affordable verification arrangements to accompany a cutoff
represents the most delicate and difficult task that will have to be
resolved in the cutoff negotiations. On one hand, each of the
declared and de facto nuclear-weapon states will be reluctant to
accept expanded and intrusive safeguards at its own nuclear
facilities, especially if implementation of such safeguards could risk
compromising sensitive information regarding permitted weapons
activities. Special inspections at undeclared facilities would be
particularly troublesome. On the other hand, each of the parties to
a cutoff will want stringent safeguards on other countries’ nuclear
programs; if safeguards are to be non-discriminatory, they should
be as stringently applied in nuclear-weapon and de facto weapon
states as in non-nuclear weapon states party to the NPT.196
The two views presented above are a recipe for stalemate. That is why,
presently, progress on a FMCT may be attained only in the absence of a
verification regime.
Additionally, FMCT negotiations would involve potentially divisive
scope and verification issues, including, inter alia, the content of
safeguards agreements;197 whether transfers of unsafeguarded fissile
200 (1995).
195. India, for example, tested its nuclear weapons in 1998. A senior official explained that
“India’s nuclear policy remains firmly committed to a basic tenet: that the country’s national
security in a world of nuclear proliferation lies either in global disarmament or in the exercise of
the principal of equal and legitimate security for all.” Jaswant Singh, Against Nuclear Apartheid,
77 FOREIGN AFF. 41-42 (1998).
196. Id.
197. The IAEA will also negotiate with NPT states, pursuant to their safeguards agreements,
“subsidiary arrangements” which provide more detailed procedures including the control measures
to be applied at nuclear facilities. These arrangements have a general part which applies to the state
as a whole and a “facility attachment” defining the safeguards to be applied at each site. See
generally D.M. Edwards, International Legal Aspects of Safeguards and the Non-Proliferation of
Nuclear Weapons, 33 INT’L & COMP. L.Q. 1 (1984), quoted in Note, Conference Proceedings:
Nuclear Arms Control, Non-Proliferation, and Disarmament in the Post-Cold War Security
material should be permitted; and how best to account for declared

material.198 Naturally, such negotiations would also bring to fruition the
promises to seek a FMCT from the 1995 NPT Review and Extension
Conference Principles and Objectives Document and the RevCon 2000
Final Document.199 This document listed “13 steps” of which this was one,
but others are now highly contentious and are no longer accepted by the
United States.200 The 1995 NPT Document was particularly important
since the NPT was extended indefinitely, with the concurrence of all
parties, and seeking a FMCT was one aspect of that agreement between
the NWS and non-nuclear weapon states (NNWS).201 While final
declarations from Review Conferences are generally accepted as not
legally binding, they may assist in the legal interpretation of the treaty.202
Certainly it is time to resolve the North Korean dilemma, a non-NPT
state of major concern to the United States and its allies such as Japan and
South Korea. The problem has manifested itself as intractable. While the
response to potential Iraqi nuclear programs was very clear, the response
Environment: Supplementary Materials: An Overview of “Canada and the Nuclear Challenge:

Reducing the Political Value of Nuclear Weapons for the Twenty-First Century, 31 CASE W. RES.
J. INT’L L. 697 (1999).
198. William Walker, The Cutoff Treaty and Excess Stocks, at http://www.unidir.ch/bdd/focus-
search.php?onglet=1.
199. 2000 Review Conference of the Parties to the Treaty on the Nonproliferation of Nuclear
Weapons, Final Document, Vol. I, NPT/CONF.2000/28 (pts. I & II), 2000, available at
http://www.disarmament.un.org/wmd/npt/2000FD.pdf [hereinafter 2000 Final Document]
(representing the consensus views of the states party to the NPT at the conclusion of the 2000 NPT
Review Conference).
200. For example, one of the 13 steps included the “importance and urgency of signature and
early ratification of the CTBT.” The United States has no present intent to ratify the CTBT.
Likewise, another step included “preserving and strengthening the ABM Treaty.” The United States
has withdrawn from the ABM Treaty. For a look at the 13 steps and a good discussion of them, see
Tariq Rauf, Towards NPT 2005: An Action Plan for the “13 Steps” Towards Nuclear Disarmament
Agreed at NPT 2000, available at http://www.cns.miis.edu/pubs/reports/pdfs/npt2005.pdf.
201. A crucial aspect of the Review Conferences is that they serve political purposes even
more than legal functions in that they focus public and diplomatic attention on the operation of the
treaty. See Burrus M. Carnahan, Treaty Review Conferences, 81 AM. J. INT’L L. 229 (1987).
202. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted
in, 8 I.L.M. 679 (1969) [hereinafter VCLT]. The United States has signed but not ratified the VCLT
but generally observes it as customary international law. See Vienna Convention on the Law of
Treaties, available at http://www.wikipedia.org/wiki/vienna_Convention_On_the_Law_of_
Treaties. Article 31(3), regarding the interpretation of treaties, states that, “[t]here shall be taken
into account, together with the context: (a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in
the application of the treaty which establishes the agreement of the parties regarding its
interpretation.”
to the North Korean quest for nuclear weapons has been more nuanced.203
North Korean performance in meeting its treaty obligations has been
sorely deficient, as evidenced principally by its clear abrogation of the
NPT while still a party,204 and of the 1994 Agreed Framework.205 Some
assurance of North Korean compliance with the a FMCT might have to be
negotiated bilaterally, but it is far more important that North Korea rejoin
the NPT. The risk is substantial, of course, with almost any non-
democratic state, whether dictatorial, kleptocratic or communist, because
the inherent lack of transparency makes verification a difficult proposition.
Commentators list other reasons for the pursuit of a FMCT, including:
(1) extending to the NWS and non-NPT states the international norm of
the NPT prohibiting the production of fissile material for nuclear
weapons;206 (2) reduction of the discriminatory aspect of IAEA safeguards
between NWS and NNWS in that the NWS have no legal obligation
(although they have accepted a legal obligation voluntarily in order to
equalize the commercial burdens NPT states share) to accept safeguards
while NNWS must do so;207 (3) a FMCT would continue international
movement towards transparency and IAEA safeguards for all fissile
material production;208 (4) a FMCT would encourage improved standards
203. Some bemoan the absence of “red lines” that precisely delineate acceptable from
unacceptable conduct in the nuclear arena. While they once existed, now instead of red lines we
have “pink smudges.” See David E. Sanger, Nuclear Reality: America Loses Bite, N.Y. TIMES, Feb.
20, 2005, at 4-1.
204. The issue of the legality of North Korea’s withdrawal from the NPT is another topic,
which in itself could be the subject of an entire law review article. Based on the author’s research,
no such law review article yet exists. Brief comments on the only NPT withdrawal are available
on the Internet. See, e.g., Frederic L. Kirgis, North Korea’s Withdrawal From the Nuclear
Nonproliferation Treaty, Jan. 2003, at http://www.asil.org/insights/insigh96.htm.
205. North Korea’s violations of the 1994 Agreed Framework are well known. It is now clear
that they were biding their time while pursuing a nuclear weapons program. See Michael J. Green,
Nuclear Shockwaves: Making the Best of Bad Options, 36 ARMS CONTROL TODAY 9 (2006).
207. It seems eminently sensible not to require NWS to have IAEA safeguards since the
purpose of such safeguards is to ensure no diversion of nuclear material to the production of nuclear
weapons. Since the NWS are by definition producing nuclear weapons, it would seem a waste of
IAEA safeguards resources to expend them in such a manner. Most NWS now have some sort of
IAEA safeguards, as the United States does, through its “Voluntary Offer.” Agreement Between
the United States of America and the International Atomic Energy Agency for the Application of
Safeguards in the United States of America, INFCIRC 288, entered in force, Dec. 9, 1980. See, e.g.,
U.S.-IAEA Safeguards Agreement, at http://dtirp.dtra.mil/tic/tic_iaea.htm. This was done to placate
NNWS who claimed that their commercial nuclear programs were being placed at a competitive
disadvantage to the NWS commercial programs. See U.S.-IAEA Safeguards Agreement: Article
by Article Analysis of the Additional Protocol, at http://www.state.gov/t/isn/trty/11757.htm.
208. Roberts, supra note 39, at 22.
for the security and physical protection of fissile material in order to

protect it from theft;209 and (5) a FMCT would be significant step towards
the NPT goal of nuclear disarmament.210
Always left unspoken, but implicit in the push for progress in FMCT
negotiations, is the goal of the appearance of progress itself.211 When there
are no scheduled negotiations on a FMCT, and no projected progress on
other major arms control and nonproliferation initiatives, many worry that
little is being accomplished on the nuclear nonproliferation front. In other
words, in this time of great danger from nuclear terrorism, a new
international agreement in the nuclear nonproliferation arena would permit
a plausible claim that at least something has been accomplished of late or
is under negotiation to protect the populace from nuclear menace and that
by supporting such an agreement, the United States is demonstrating its
commitment to NPT Article VI.
This is not an argument for arms control for the sake of arms control.
Rather, it is an argument for integrating a FMCT into the overall U.S.
national security strategy. The benefits for the United States would clearly
exceed any burdens and that makes such a treaty worthy of pursuit.
Some believe that, at this point, a FMCT would not be worth the cost.
Now that India and Pakistan have tested nuclear weapons and have
become de facto NWS, what is the point of a FMCT? Nearly all agree that
to make this treaty worthwhile, both of these states, and probably Israel,
would need to participate.212 But at what cost to the NPT and the overall
nuclear nonproliferation regime? If those states could claim
nonproliferation credentials with their nuclear weapons, would it pervert
the regime? These states would also have a great incentive to accelerate
production of fissile material before entry-into-force. This would be an
adverse consequence, possibly resulting in more nuclear weapons in
volatile regions or a greater likelihood of nuclear war or diversion to non-
state actors.
No one would argue that a new agreement will solve everything. In the
real world, few undertakings approach perfection—and multilaterally
negotiated instruments almost never do. Some scholarly research indicates
that environmental treaties are rarely able to solve the problems they are
209. Id.
210. See id.
211. FRED IKLE, HOW NATIONS NEGOTIATE 43-58 (1976). This expert negotiator lists many
other benefits of negotiating even if it is known that an agreement will not be attained. Id.
212. See, e.g., Nuclear Threat Initiative, Securing the Bomb: Fissile Material Cutoff Treaty,
at http://www.nti.org/e_research/cnwm/ending/fmct.asp.
designed to confront. The NPT and CWC, however, have been reasonably
effective treaties.
Although we may reasonably assume that States create treaty

regimes because they want them to be there, we cannot assume that
this is because the resultant regimes will “solve” the identified
problems. In fact, few multilateral treaties have fully solved the
problem that gave rise to their creation; having analyzed fourteen
regimes, Underdal concluded that most regimes “make a positive
difference but fall short of providing functionally optimal
solutions.” This is why there has been so much scholarly interest in
the question of regime effectiveness over recent years and why
some writers suggest that it might be best to define a regime as
effective merely if things are better than they would have been had
the treaty not been there.213
Even though a FMCT alone will not ultimately end nuclear proliferation,
it would provide a legal mechanism and framework to manage its effects.
A FMCT has been widely viewed as the next step in the nonproliferation
regime.214 No multilateral agreement with a specific goal of nuclear
nonproliferation has been signed since the CTBT,215 which was concluded
213. SCOTT, supra note 108, at 7 (quoting ARILD UNDERDAL, CONCLUSIONS: PATTERNS OF
REGIME EFFECTIVENESS 435 (2002)). While this may seem like setting one’s sights extremely low,
it is in fact a very pragmatic approach to assessing regime effectiveness. Pragmatists assess
environmental treaty regimes as effective if the state of affairs would be worse without it. See
ROBERT O. KEOHANE ET AL., INSTITUTIONS FOR THE EARTH: SOURCES OF EFFECTIVE
ENVIRONMENTAL PROTECTION 7 (1994), quoted in SCOTT, supra note 108, at 8.
214. See Reaching Critical Will, Minister of State from United Kingdom Tells Conference
FMCT is Next Step in Pursuit of Nuclear Disarmament, Mar. 23, 2006, at http://www.
reachingcriticalwill.org/political/cd/press06/march23.html.
215. 35 I.L.M. 1439 (1996). The CTBT was signed by 65 states on Sept. 25, 1996 at the
United Nations in New York. Signatory states included the United States, Russia, France, United
Kingdom, and China. The CTBT prohibits all nuclear testing to include atmospheric, subterranean
and under water. The CTBT does not enter into force until 44 key nuclear states have ratified it, and
thus far, only 33 have ratified. On Oct. 13, 1999, the U.S. Senate declined to give its advice and
consent to ratification of the CTBT. See Eric Schmitt, Senate Kills Test Ban Treaty in Crushing
Loss for Clinton; Evokes Versaille Pact Defeat, N.Y. TIMES, Oct. 14, 1999, at A1. Since the United
States had voluntarily declared a unilateral moratorium on testing before signing the CTBT, the
United States now refers to that action and not the signing of the CTBT, as the rationale for its
current policy of not testing nuclear weapons. The Limited Test Ban Treaty (LTBT), which has
been effective since 1963, has over 100 states parties. Treaty Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space, and Under Water, Aug. 5, 1963, United States—United
Kingdom—USSR, 14 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43. That treaty covered outer
space, atmospheric and underwater nuclear testing. Underground testing was not restricted until the
in August 1996. A decade is too long to accept no progress in this vital

area.
X. THE TIME FOR A FMCT IS NOW

Given the current nuclear threat, many governments may wish to
change the perception that they have not been doing enough to protect
their populace from this growing menace. The clear view of international
and nuclear nonproliferation commentators is that FMCT has great merit:
A multilateral nonproduction agreement could have a powerful

impact on advanced proliferation. It would provide the threshold
states with an alternative to the NPT that would effectively freeze
their nuclear weapons capabilities in place, at least in terms of the
number of weapons in their arsenal. Some threshold states which
are currently unwilling to get rid of their existing nuclear weapons
or the capability to have them on short notice may nevertheless find
the status quo satisfactory if their neighbors or security rivals will
be similarly frozen in place or if the agreement resolves otherwise
difficult political problems for them. A legally binding multilateral
nonproduction agreement also provides the only realistic vehicle
whereby freezing the status quo can be verified, without a
participating country having to make an accounting for past
production of special nuclear material.216
From the standpoint of terrorists, it would certainly be most preferable

to steal or purchase an assembled, operational nuclear weapon, but
heightened security on such weapons generally eliminates the plausibility
of this option. Obtaining a U.S. nuclear weapon, for example, would be
nearly impossible for terrorists or any other unauthorized person. To date,
no nuclear weapons have ever been stolen.217
United States and Soviet Union signed the Threshold Test Ban Treaty of 1974 which limited
underground nuclear tests to 150 kilotons; it entered into force in 1990. Treaty Between the United
States of America and the Union of Soviet Socialist Republics on the Limitation of Underground
Nuclear Weapon Tests, opened for signature, July 3, 1974, U.S.-U.S.S.R., S. Treaty Doc. No. 101-
19, KAV1782,2607. Finally, an agreement on Peaceful Nuclear Testing was signed by the United
States and the Soviet Union in 1976; it also entered into force in 1990. Peaceful Nuclear Explosion
Treaty, May 28, 1976, United States-U.S.S.R., 15 I.L.M. 891 (1976).
216. Williamson, supra note 2, at 159–160. The term “advanced proliferation” refers to leaps
in nuclear weapons technology resulting in improved yields, smaller size, greater accuracy.
217. See ALLISON, supra note 5, at 218.
The next best option for terrorists, then, is the fissile material itself,
assuming that the goal is to manufacture a nuclear weapon or improvised
nuclear device (IND). As many commentators have noted, the easiest
“nuclear” substance to steal would be radioactive materials that are not
fissile but can still cause panic if deployed in a radiation dispersal device
(RDD) better known as a “dirty bomb.”218 Such weapons use conventional
explosives to scatter radioactivity from materials such as cesium-137,
strontium-90, and cobalt-60, all of which are widely available in medical
facilities and civilian research labs and are poorly protected by comparison
to nuclear weapons and fissile material.219
Fissile material is also a convenient target for terrorists because it is
typically not as well secured as weapons, is more widely available than
nuclear weapons, and is much easier to transport.220 As such, it poses grave
threats that must be addressed. Once terrorists obtain the fissile material,
building an improvised nuclear device is, for those with the expertise, a
distinct possibility.221
The breakup of the Soviet Union resulted in the loosening of many
controls that existed on nuclear materials in Russia. Russia’s stockpile of
non-weaponized fissile material is especially vulnerable to theft. Should
any be stolen, the risk of sale to terrorists and states that support them is
quite high.222
Actual production of fissile material is too difficult for terrorists working
alone. “The technology, the industrial infrastructure, and the financial
commitment for such a project essentially require the resources of a
state.”223 This is why it is crucial to secure the existing stockpiles of fissile
material, and cap the amount available for weapons.
XI. CUSTOMARY INTERNATIONAL LAW

In the absence of a FMCT, the vast majority of states support the goal
of attaining an internationally accepted ban on the production of fissile
material for nuclear weapons. Some idealists hope that this concept will
218. Id. at 219.

219. See Nuclear Terrorism, a study by the Monterey Institute’s Center for Nonproliferation
Studies, Sept. 2004, at http://www.nti.org/f_wmd411/fla6_4.html.
220. Dan Stober, No Experience Necessary, 59 BULL. ATOMIC SCIENTISTS 56-63 (2003).
221. Id.
222. ROBERT F. MOZLEY, THE POLITICS AND TECHNOLOGY OF NUCLEAR PROLIFERATION 214-
32 (1998).
223. See ALLISON, supra note 5, at 98.
eventually be included in customary international law. That may be the

proverbial “bridge too far.”
Customary international law is not “black letter law” in the sense that
it is codified in statutes, treaties, or international agreements, but it is
nonetheless widely viewed as law in the international context. It is
amorphous, in that there is no authoritative text to which one may refer.
Instead, scholars must “read the tea leaves of State practice and of
perceptions and expressions of such practice by available sources, official
and unofficial.”224 To the extent that a principle is recognized as having
attained the status of customary international law, it is nearly universally
observed.
Customary international law has been defined as having two principal
elements: a concordant practice by a number of states acquiesced in by
others and a conception that the practice is required by or is consistent
with the prevailing law or opinio juris.225 For example, the International
Court of Justice (ICJ) applies international custom as evidence of a general
practice accepted as law in addition to treaties and other evidence.226
One generally acknowledged requirement of customary international
law is that states view a certain practice as compulsory.227 While specific
practices may be easy to identify, such as the view that slavery is illegal
(which has led to the general abandonment of the practice of slavery),
general principles of law take longer to ascertain.228 Treaties, of course, if
universally supported over a significant period of time, affect international
law by providing customary law for non-parties. The NPT has certainly
done that and a FMCT could accomplish the same, if it attains the near
universality of the NPT. The converse of that viewpoint is that some
nations, especially India and Pakistan, reject the idea of being bound by
rules of customary international law. Such states view customary law as
relics of the past era of colonialism and imperialism.229
This is a significant assertion, since the non-NPT states have accepted
no treaty obligation to not obtain nuclear weapons. As a matter of strict
international law, or treaty law, non-NPT states have no obligation that
224. CHARLES J. MOXLEY, JR., NUCLEAR WEAPONS AND INTERNATIONAL LAW IN THE POST
COLD WAR WORLD 21 (2000).
225. JOHN P. GRANT & J. CRAIG BARKER, PARRY AND GRANT ENCYCLOPAEDIC DICTIONARY
OF INTERNATIONAL LAW 108-09 (2d ed. 2004).
226. ENCYCLOPEDIA OF PUBLIC LAW 898-902 (1992).
227. MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 52-54 (2d ed. 1993).
228. See generally ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW
(1971).
229. ANTHONY D’AMATO & KIRSTEN ENGEL, INTERNATIONAL ENVIRONMENTAL LAW
ANTHOLOGY 14 (1996).
would prevent them from acquiring nuclear weapons. Nonetheless, it is

clear that all non-NPT NWS have felt the need to conceal their nuclear
weapons activities, which is some evidence of the international
nonproliferation norm having been fully accepted, even when not
observed.230 Secrecy, naturally, is not always evidence of illegality. There
are also political and security reasons for maintaining secrecy and/or
ambiguity regarding a nuclear weapons program.
It seems fruitless to argue that nuclear weapons are illegal, although
some scholars have advanced that argument.231 Similarly, fissile material
for nuclear weapons is even further from being considered illegal, but a
FMCT would be a necessary and vital step along that path.
A FMCT, therefore, will serve many functions. At the very least, it
would place a cap on the amount of fissile material available for nuclear
weapons from the date the treaty enters- into-force. Also, under the VCLT,
Article 18,232 nations that have signed treaties are obligated to refrain from
any action which would defeat the “object and purpose” of the treaty prior
to its entry-into-force. Since the clear purpose of a FMCT is to prevent the
production of fissile material for nuclear weapons use, it is arguable that
state signatories would be obligated to cease unsafeguarded fissile material
production for nuclear weapons because the treaty would not impact
safeguarded reprocessing and enrichment operations for peaceful uses
upon signature of a FMCT. It should always be noted that a state may
exempt itself from any emerging customary international law norms by
registering persistent objections to the custom.
XII. THE FMCT WITHIN THE BROADER NPT FRAMEWORK

The NPT is the key element of the nuclear nonproliferation regime. It
seeks the end of nuclear proliferation and has as an ultimate goal complete
nuclear disarmament. The regime, meaning the outgrowth of mechanisms
to attain the goals of the NPT, consists of many other treaties, agreements,
national legislation, export control groups and other measures. The NPT
230. See AVNER COHEN AND BENJAMIN FRANKEL, OPAQUE NUCLEAR PROLIFERATION:
METHODOLOGICAL AND POLICY IMPLICATIONS 31 (1991).
231. See MOXLEY, supra note 224, at 155-250; Elliott L. Meyrowitz, The Laws of War and
Nuclear Weapons, 9 BROOK. J. INT’L L. 227 (1983); David M. Corwin, The Legality of Nuclear
Arms Under International Law, 5 DICK. J. INT’L L. 271 (1987); JONATHAN SCHELL, THE GIFT OF
TIME, THE CASE FOR ABOLISHING NUCLEAR WEAPONS NOW (1998). But see Eric J.G. McFadden,
The Legality of Nuclear Weapons: A Response to Corwin, 6 DICK. J. INT’L L. 313 (1988).
232. See VCLT, supra note 202.
contemplates certain arms control steps, working towards nuclear

disarmament.
A verifiable agreement to end production of plutonium and highly

enriched uranium (HEU) for weapons would be a central part of an
overall regime for deep reductions in nuclear arms, and hence has
long been seen as a key part of the nuclear weapon states’ meeting
their obligations under Article VI of the Nonproliferation Treaty
(NPT) to negotiate in good faith toward nuclear disarmament.
Moreover, if accepted by the NPT nuclear weapon states and the
few states outside the NPT (India, Pakistan, Israel, and now North
Korea), a cutoff could begin the process of placing agreed limits on
these states nuclear weapons activities, bringing the non-NPT states
into at least a part of the nonproliferation regime and reducing the
discrimination inherent in the NPT’s division of states into nuclear
weapon states and non-nuclear weapon states.233
The Strategic Arms Limitation Treaty (SALT),234 the Strategic Arms

Reduction Treaty (START),235 and the Strategic Offensive Reductions
Treaty (SORT) or Moscow Treaty236 for example, are bilateral arms
control and disarmament treaties that reduce the number of nuclear
weapons held by the United States and Russia. The CTBT was another
critical milestone on the path to nuclear disarmament. The NPT parties, at
RevCons and Preparatory Committee Meetings (PrepComs), envisioned
a series of steps on the path to nuclear disarmament237 and both the CTBT
and FMCT would be key steps on that path. The CTBT is an example of
233. Ending Further Production, Fissile Material Cutoff Treaty, Nuclear Threat Initiative,
July, 2004, at http://www.nti.org/e_research/cnwm/ending/fmct.asp.
234. Union of Soviet Socialist Republics—United States: Treaty on the Limitation of Strategic
Offensive Arms, June 18, 1979, 18 I.L.M. 1112 [hereinafter SALT II Treaty]. The treaty, which
never entered into force, would have required the two contracting parties to reduce their respective
arsenals of long-range nuclear weapons to an agreed, common ceiling. Id. The United States never
ratified the treaty. See Manford R. Hamm & Brian Green, SALT II: At What Price?, at
http://www.heritage.org/Research/NationalSecurity/bg439.cfm. President Carter, however, an-
nounced that the United States would adhere to the treaty provisions, as long as the Soviet Union
reciprocated. President Brezhnev made a similar statement regarding Soviet intentions.
235. Treaty on the Reduction and Limitation of Strategic Offensive Arms, S. Treaty Doc. No.
102-20 (1991).
236. Strategic Offensive Reductions Treaty, May 24, 2002, U.S.–Russ. Federation, S. Treaty
Doc. No. 107-08 (reducing strategic nuclear warheads to a level of 1700-2200 by Dec. 31, 2012).
the CD successfully negotiating an arms control treaty and functioning as

envisioned.
The CTBT has not entered-into-force, nor is it soon likely to do so,
since its provisions require the accession of forty-four key states with
nuclear programs before the treaty becomes operative.238 In hindsight, this
was foreseeable, but perhaps that was the price of consensus.239
Opponents of a CTBT also take issue with the adequacy of its
verification scheme.240 And to the extent that a treaty on nuclear testing
was viewed by some as unverifiable, a treaty prohibiting production of
fissile material for weapons would be perceived as that much less
verifiable. Nuclear testing is by its very nature far more obvious and
therefore more subject to detection than enrichment and reprocessing,
which provide much less of a detectable signature.
The significant bilateral nonproliferation, nuclear arms control and
disarmament treaties include the Anti-Ballistic Missile Treaty (ABM)
(1972),241 START (1991),242 the Intermediate Range Nuclear Forces Treaty
(INF) (1987),243 and most recently, the Moscow Treaty (2002)244 (referred
to by the Russians as SORT). All of these agreements are between the
United States and Russia/Soviet Union and all work toward the goal of
nuclear disarmament and are fully consistent with NPT Article VI.

239. Miles A. Pomper, Test Ban Infrastructure: A Concrete Reality, at http://www.
armscontrol.org/act/2004_10/CTBT.asp. Of the 44 states which must accede for the CTBT to enter-
into-force, 33 have ratified it, while eight of the remaining eleven have signed. Key states which
have signed but not ratified the treaty include China, Colombia, Congo, Egypt, Indonesia, Iran,
Israel, United States, and Vietnam. Key states that have not signed include India, North Korea, and
Pakistan.
240. See Helms, supra note 108. Many believe that the CTBT, with its 321 monitoring stations
and an onsite inspection regime, is effectively verifiable.
241. Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-U.S.S.R.,
23 U.S.T. 3435, 944 U.N.T.S. 13. The ABM Treaty is no longer in force. See ABM Treaty Fact
Sheet (Statement of Withdrawal from ABM Treaty), available at http://www.state.gov/t/ac/rls/fs/
2001/6848.htm.
242. Treaty on the Reduction and Limitation of Strategic Offensive Arms, July 31, 1991, U.S.-
U.S.S.R., S. Treaty Doc. No. 102-20 (1991); Protocol to the Treaty with the Union of Soviet
Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms, May 23, 1992,
S. Treaty Doc. No. 102-32 (1992).
243. Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles, Dec. 8,
1987, U.S.-U.S.S.R., 1657 U.N.T.S. 2, 27 I.L.M. 84, S. Treaty Doc. No. 100-11 (1988).
244. Strategic Offensive Reductions Treaty, May 24, 2002, U.S.-Russian Federation, S. Treaty
Doc. No. 107-8.
Significant multilateral nuclear nonproliferation treaties include the

NPT (1968),245 the Latin American Nuclear Weapon Free Zone (1967),246
the South Pacific Nuclear Weapon Free Zone (1985),247 the South East
Asian Nuclear Weapon Free Zone (1995),248 and the African Nuclear
Weapon Free Zone (1996).249 Most of these have protocols for non-
regional states to sign.
The two classes of NPT states are highly relevant to FMCT
considerations. For example, the NWS already have nuclear weapons, and,
pursuant to Article VI, have committed to work towards nuclear
disarmament.250 The NNWS have promised not to receive, acquire, or even
seek assistance in the manufacture of nuclear weapons.251 Therefore, it
may be argued that a FMCT would offer only the advantage of bringing
India, Israel, North Korea and Pakistan within the nuclear disarmament
and nonproliferation regime.
One would think that there should be some easier way to bring four
holdout states within the nonproliferation regime other than pursuing an
entirely new multilateral treaty with the goal of signing 192 states similar
to the NPT. Many believe that until the underlying security issues are
resolved or their arsenals fully develop, these states will never accede to
the NPT or FMCT. NPT commentators have considered other means of
bringing these states under some form of nuclear restraint. One possible
method includes interpreting the NPT in such a manner that the non-NPT
states may still accede as NNWS while retaining their nuclear weapons.252
Alternatively, some form of associate membership under a separate,
freestanding agreement or protocol might address some of the
nonproliferation issues created by the non-NPT states.253
It is certainly interesting to note that the Administration desires to bring
India within the nuclear nonproliferation regime by seeking peaceful
245. NPT, supra note 27.

246. Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 6 I.L.M.
521, 634 U.N.T.S. 326 (1968).
247. 1445 U.N.T.S. 177; 24 I.L.M. 1440 (1985).
248. Treaty on the Southeast Asia Nuclear-Weapon Free Zone, Dec. 15, 1995, 35 I.L.M. 635.
249. African Nuclear Weapon Free Zone Treaty (Pelindaba Text), 35 I.L.M. 698 (1996).
250. NPT, supra note 27, art. IV.
251. Id. art. II.
252. See David S. Jonas, Variations on Non-Nuclear: May the “Final Four” Join the Nuclear
Nonproliferation Treaty as Non-Nuclear Weapon States While Retaining Their Nuclear Weapons?,
2005 MICH. ST. L. REV. 417.
253. Avner Cohen & Thomas Graham, Jr., An NPT for Non-Members, 60 BULL. ATOMIC
SCIENTISTS 40-44 (2004), available at http://www.thebulletin.org/issues/2004/mj04/mj04cohen.
html (last visited Feb. 19, 2005).
nuclear cooperation with India in exchange for assurances of nuclear

nonproliferation, but many have been critical of this arrangement.254
Arms control theology holds that the United States should be anxious
to begin negotiations on a FMCT and to engage India in that process. “A
universal measure, it would reinforce the NPT and voluntary nuclear
export controls, as well as help contain the nuclear programs of the three
NPT holdout states: India, Israel and Pakistan.”255
Yet the voluntary nature of such export controls has proven a relative
success in the nuclear, chemical and biological areas. The Nuclear
Suppliers Group (NSG), established in 1975, comprises forty-five nuclear
supplier states that voluntarily agree to harmonize national controls
governing the transfer of civilian nuclear material, technology, and dual-
use items to NNWS.256 Similarly, the Australia Group is another group of
states (thirty-eight states and the European Union), which have entered
into a non-binding arrangement which aims to minimize the risk of
exporting or transshipping countries to assist chemical and biological
weapon proliferation.257 Given the success of such voluntary arrangements,
a FMCT without verification is surely worthy of consideration.
The 1995 NPT Review Conference, which extended the NPT
indefinitely, listed a set of “Principles and Objectives for Nonproliferation
and Disarmament.”258 One of the key steps noted therein, to be taken in the
near future, was the negotiation of a FMCT.259 Many commentators
believe that the longer the FMCT remains a mere concept, the greater the
damage to the NPT regime, which is viewed by many as already reeling.260
Similarly, at the 2000 NPT RevCon, the states parties agreed to take
thirteen steps to implement the “Principles and Objectives for Nuclear
Non-Proliferation and Disarmament.”261 The key step related to FMCT
was step number five, which stated:
254. Dafna Linzer, Congress Faults Nuclear Deal With India, WASH. POST, Sept. 9, 2005, at
A8.
255. Kimball, supra note 8.
256. See Nuclear Suppliers Group at a Glance, at http://www.armscontrol.org/factsheets/
NSG.asp. See also Nuclear Suppliers Group, at http://www.nuclearsuppliersgroup.org/member.htm.
257. See The Australia Group: An Introduction, at http://www.australiagroup.net/en/intro.
htm.
258. 1995 Nuclear Nonproliferation Treaty Conference, Decision 2, Principles and Objectives
for Nuclear Non-Proliferation and Disarmament, 8, available at http://disarmament2.un.org/wmd/
npt/1995dec2.htm [hereinafter NPT 1995].
259. Id.
260. Rhianna Tyson, The NPT Under Siege, at http://www.reachingcriticalwill.org/legal/npt/
NGOpres2003/Intro.htm.
261. See supra note 84
The necessity of negotiations in the Conference on Disarmament on

a non-discriminatory, multilateral and internationally and
effectively verifiable treaty banning the production of fissile
material for nuclear weapons or other nuclear explosive devices in
accordance with the statement of the Special Coordinator in 1995
and the Mandate contained therein, taking into consideration both
nuclear disarmament and nuclear non-proliferation objectives. The
Conference on Disarmament is urged to agree on a programme of
work which includes the immediate commencement of negotiations
on such a treaty with a view to their conclusion within five years.262
The 2005 NPT Review Conference, held in May, 2005, has come and
gone, and, instead of the CD proudly announcing a completed FMCT
negotiation, as envisioned in 1995, the norm of no progress prevails. This
is very discouraging to NPT states and will likely continue to provide fuel
for many inflammatory remarks. It is conceivable that several states could
either threaten to withdraw from the NPT or actually do so if there is no
more progress towards nuclear disarmament and nonproliferation.
Continued stalemate with respect to FMCT negotiations is stark evidence
of the lack of progress.
The NPT and its importance in the nuclear nonproliferation arena raise
another question that must be addressed with respect to a FMCT. The NPT
is so crucial that all would agree that a FMCT must do nothing to decrease
its merit or vitality. Yet by implicitly making India, Israel, North Korea
and Pakistan the key states for FMCT, some worry that it legitimizes those
states as de facto NWS.263 This will involve deft diplomacy given that the
NPT legally recognizes as NWS only those that tested nuclear weapons
prior to 1967.
XIII. CRITICAL STATES PARTIES FOR THE FMCT

The parties to multilateral arms control and nonproliferation treaties
would ideally prefer all states to sign264 any agreement under negotiation.
In the U.N. General Assembly, all states count equally.265 But there is no

263. See, e.g., Lewis A. Dunn, A FMCT: Can We Get From Here to There?, available at
http://www.fas.org/nuke/control/fmct/2e-dunn.pdf.
264. States that sign the treaty after the negotiating parties have done so are said to accede to
a treaty.
265. See U.N. General Assembly 59th Sess., Rules of Procedure, at http://www.un.org/ga/59/
ga_rules.html.
question that some are more equal than others, starting with the NWS
themselves, who also happen to be the Permanent Five (P-5) members of
the U.N. Security Council.
In the case of a FMCT, the conventional wisdom has been that most
critical to its success is the accession of India, Israel, North Korea, and
Pakistan, the non-NPT states. India and Pakistan were accurately termed
Threshold states prior to testing their nuclear weapons in 1998, and their
nuclear capabilities were publicly ambiguous. North Korea has now joined
those two states as de facto, NWS. North Korea tested its first nuclear
weapon on October 9, 2006.266 This test has prompted international
concern regarding an appropriate response.267 Only Israel maintains
ambiguity regarding its nuclear weapons capabilities, and thus would be
the only remaining true Threshold state.268 Many view the participation of
these states as the raison d’etre for a FMCT.269 Other states see it as
crucial to constrain the NWS.
Some might now argue that since India, North Korea, and Pakistan are
known to have nuclear weapons and since most believe that Israel has
nuclear weapons, none would accede to a FMCT. To go to the trouble of
negotiating a new treaty and not have the four key states participate
borders on the absurd. But, as time marches on, and those states have more
time to (legally) produce additional fissile material, they may arrive at a
point at which they would feel secure acceding to a FMCT so long as their
existing stocks were not affected by the treaty. Of course, the more fissile
material they produce, the more pointless their accession, and the more
pointless FMCT itself would become. This illustrates yet another reason
why the time for a FMCT is now.
XIV. WHAT A FMCT WOULD LIKELY PROHIBIT AND AUTHORIZE

Naturally, without any treaty text under active negotiation, the specific
activities proscribed by a FMCT remain to be determined. The United
266. See Nuclear Weapons Testing, at http://www.globalsecurity.org/wmd/world/dprk/nuke-

test.htm.
267. See William J. Perry, In Search of a North Korea Policy, WASH. POST, Oct. 11, 2006, at
A19.
268. The term Threshold state will not be used since the term “non-NPT state” is more
comprehensive.
269. See, e.g., Hui Zhang, FMCT and PAROS: A Chinese Perspective, at http://www.inesap.
org/bulletin20/bul20art06.htm.
States, however, tabled a draft FMCT at the CD on May 18, 2006.270 The
traditional thought on this matter has been that the production of fissile
material, or its acquisition through another party, or its transfer to other
states, would be prohibited for use in nuclear weapons or other explosive
devices.271
Permissible activities for FMCT parties would probably include:
retention of existing stocks of fissile material outside of international
safeguards;272 future production of fissile material for non-explosive
military uses such as naval propulsion; the production of tritium for use in
nuclear weapons;273 recycling of fissile material already in military use;274
chemical reprocessing of irradiated material under safeguards as required
to manage spent fuel;275 and production of low enriched uranium (LEU)
for reactor fuel.276
Arms control and FMCT proponents are well aware that many aspects
of a FMCT will be extremely controversial.277 In the context of multilateral
negotiations at the CD, it means that consensus will be very hard to attain.
Nonetheless, it is useful to examine the major issues that will simply have
to be considered and resolved, if serious negotiations ever begin. Given the
difficulty of resolving any one of the issues, deletion of a verification
regime, surely one of the most contentious matters in a FMCT, could pave
the way for successful negotiations, rather than impede progress.
As will quickly be ascertained, there is significant uncertainty about
what a FMCT might look like. The only certainty is that if there is to be
one, there are many decisions that will have to be made regarding the
obligations of signatory states. Each of these decisions has a major impact
on the overall regime and the extent to which it is intrusive, verifiable,
expensive, reliable, and enforceable.
270. Press Release, U.S. Mission to the United Nations in Geneva, U.S. Tables Draft FMCT
Text at Conference on Disarmament, available at http://www.usmission.ch/Press2006/0518Draft
FMCT.html.
271. See generally BRIAN G. CHOW ET AL., THE PROPOSED FISSILE-MATERIAL CUTOFF: NEXT
STEPS (1995).
272. Id. at xi.
273. Tritium is an isotope of hydrogen used to boost the power of nuclear weapons. See
Tritium, Radiation Protection, at http://www.epa.gov/radiation/radionuclides/tritium.htm.
274. See CHOW ET AL., supra note 271. This is the same as existing stocks.
275. Id. at 24. “An unnamed ‘senior U.S. official’ . . . estimated . . . in February, 1995 that a
global ban on the production of fissile material would ‘take forever.’”
276. Victor Bragin et al., Viewpoint: Verifying a Fissile Material Production Cut-Off Treaty,
6 NONPROLIFERATION REV. 99 (1998).
277. Id.
XV. DEFINITIONS
A. Fissile Material
The CD will have to decide, first and foremost, on the definition of
fissile material, the subject of the treaty. Under IAEA INFCIRC 153,278
nuclear material includes all source and special fissionable material as
defined in the IAEA Statute.279 It would most probably include all
plutonium, (although some believe that the isotope Pu-238 used as a
compact power source could be exempted),280 and uranium enriched to
more than 20% in the isotope U-235. Yet some states may wish to limit
application to U-235 enriched to over 90%. Some believe it should include
tritium, americium, and neptunium-237. Tritium, though, does not fission,
so there is no valid reason for including it in a FMCT. Since tritium boosts
the power of a nuclear weapon, even though it would not be useful without
HEU or Pu, some would like to see it in FMCT.281 Tritium must not be
included since it would clearly be unacceptable to the NWS.
The IAEA has considered transuranic elements and has encouraged
states to voluntarily control them.282 A FMCT should treat U-233 like Pu.
The primary focus should remain on HEU and Pu (as well as U-233)
278. See International Atomic Energy Agency, The Structure and Content of Agreements
Between the Agency and States Required in Connection with the Treaty on the Non-Proliferation
of Nuclear Weapons, INFCIRC 153 (1972), available at http://www.iaea.org/Publications/
Documents/Infcircs/Others/inf153.shtml.
279. See Statute of the IAEA, at http://www.iaea.org/About/statute_text.html. Under U.S. law
special nuclear material is defined by Title I of the Atomic Energy Act (AEA) of 1954, 42 U.S.C.
2011, as Pu, U-233, or uranium enriched in the isotopes U-233 or U-235. The AEA was enacted
in conjunction with President Eisenhower’s Atoms for Peace Program. See U.S. Nuclear Regulatory
Commission, Special Nuclear Material, at http://www.nrc.gov/materials/sp-nucmaterials.html.
280. See IEER Factsheet, Physical, Nuclear, and Chemical Properties of Plutonium, at
http://www.ieer.org/fctsheet/pu-props.html.
281. Neptunium-237 and americium are less well-known fissile materials that are of some
proliferation concern since it is possible to use them in nuclear weapons. There is an emerging
consensus that neptunium should be included. In 1998 the U.S. Department of Energy declassified
the information that nuclear weapons could be made from such materials. See Frank Barnaby &
Nick Ritchie, The FMCT Handbook: A Guide to a Fissile Material Cut-off Treaty, 26, available
at http://www.oxfordresearchgroup.org.uk/publications/books/fmcthandbook.htm. Both of these
elements are produced in nuclear reactors and are found in spent fuel. They are not included in the
definition of special fissionable material in the IAEA statute, but were considered by the IAEA
Board of Governors in 2000. Tritium, while essential to boost nuclear weapon yield, also has many
civil applications. Id.
282. See IAEA.org, supra note 75.
because covering other materials would expand the scope of the treaty too
broadly. After all, the broader the scope of the treaty, the more difficult it
will be to negotiate and attain consensus. Therefore, the wiser approach is
to limit the scope of the treaty ab initio, and once it is concluded, if
appropriate, it could later be amended to include other materials, or
possibly a verification regime if that becomes acceptable.
But this most basic decision could itself result in protracted
negotiations as nations decide how far-reaching they wish a FMCT to be.
For example, at the minimalist end of the spectrum, the treaty could deal
with only super-grade Pu and weapons grade HEU. But on the other end
of that spectrum, it could cover all Pu, uranium enriched to over six
percent U-235, tritium, americium and neptunium. It would not cover
LEU, which is enriched to less than six percent U-235, and is typically
used in commercial power reactors. The U.S. draft defines “fissile
materal” as Pu except Pu where the isotopic composition includes 80% or
greater Pu-238 and uranium containing 20% or greater enrichment in U-
233 or U-235.
B. Production
Even this basic term requires definition in such a treaty as FMCT. Will
it just include basic enrichment and reprocessing functions or will it be an
expansive definition to include irradiation in reactors and recycling of
weapons materials? The definition of this key term is crucial because it
will impact heavily upon what types of facilities or activities will be
covered by a FMCT.
C. Scope and Existing Stocks

In the existing literature available on a FMCT, the issues of “scope”
and “existing stocks,” are often used interchangeably. In this Article, the
term scope will apply generally to materials and the issue of existing
stocks; facilities will be considered separately.
This is one of the most difficult issues and there exists major
disagreement on what the scope of a FMCT should be. While nearly all
agree that it must deal with future production of HEU and Pu for weapons
use, the issue of scope mostly refers to past production, meaning existing
stocks. Given that all nuclear materials and facilities in the NNWS are
subject to IAEA fullscope safeguards, it is the NWS and the non-NPT
states that would be affected by any inclusion of existing stocks.283
283. Du Preez, supra note 130.

The term “cutoff” refers to a date when future production of fissile

material for use in nuclear weapons or other nuclear explosive devices,
will cease. It is a critical issue for negotiations. Without a cutoff, FMCT
would simply be a Fissile Material Treaty (FMT), thus encompassing all
existing stocks of fissile material. Of course, if it did that, it would be
indistinguishable from a nuclear disarmament treaty since it would outlaw
fissile material and therefore nuclear weapons. But this approach would
also guarantee non-support from the NWS and non-NPT states. The U.S.
draft, of course, exempts existing stocks.
As a conceptual matter, this choice impacts on the function of a FMCT
as a nonproliferation treaty or a disarmament treaty. To the extent that it
does nothing to reduce the amount of existing fissile material, it is a
nonproliferation treaty that would provide assurance that quantities of
fissile material available for weapons will not increase. If the treaty
mandated cuts in or eventual elimination of existing stockpiles, however,
it would be a disarmament treaty.
Some might argue for a FMCT with a phase-in period, like the CWC,
requiring destruction of stocks over a period of years. Indeed, many argue
that the opinion of the International Court of Justice has made nuclear
weapon use unlawful.284 But for the support of the NWS and non-NPT
states, fissile material currently in nuclear weapons must be excluded from
the treaty.
If existing stocks of fissile material are excluded from the treaty,
however, then nations without fissile material and nuclear weapons might
want some assurances of irreversibility, meaning that these stocks would
never increase. The only way that could be determined would be for the
nations maintaining existing stocks of fissile material under the treaty to
declare exactly how much of a stockpile they have upon entry-into-force
of a FMCT. Of course, a mere declaration, without verification, does not
ensure irreversibility, and therefore some NNWS are sure to press for a
treaty that provides for verification. Some states possessing fissile
material, such as China and some non-NPT states may hesitate to make
such a declaration, since they are not democracies and are not generally
284. See Legality of the Threat or Use of Nuclear Weapons, International Court of Justice,
Advisory Opinion, General List at pt. VI, 35-36, No. 95 (July 8, 1996), available at http://www.
icj-cij.org. Advisory opinions are not, of course, legally binding, but still have relevance. The ICJ
concluded that due to the indiscriminate, uncontrollable, and widespread effects of nuclear
weapons, their use would generally violate the laws of armed conflict. The Court stated that it did
not have sufficient facts to determine the legality or illegality of use in cases of self defense, where
a nation’s survival was at stake.
forthcoming with information—particularly concerning national security

matters. This could be yet another potentially contentious topic.
The converse of that argument is that if states provide declarations of
existing stocks of even military fissile material, this could serve to codify
that right, and to provide a legitimacy to the non-NPT states that most
states do not wish to see attained.
Many states have concluded, quite correctly, that if existing stocks are
not covered, then a FMCT would result in a discriminatory treaty
analogous to the NPT, with two classes of states—those lawfully in
possession of fissile material and those for whom possession is prohibited.
This would be analogous to the NPT with NWS that lawfully possess
nuclear weapons, and the NNWS which promise not to pursue nuclear
weapons.285 It is very difficult to address this perceived inequity, except to
note that the difference would not be treaty based.
Another topic guaranteed to be highly divisive, assuming that the NWS
may indeed retain their existing stocks of fissile material, is whether the
existing stocks must be subject to some type of guarantees, commitments,
or IAEA safeguards286 to ensure no diversion for nuclear weapons
purposes either by the state or by another state after export to that state.
The key potential reasons for unifying existing stocks: 1) to remove them
over time from weapons programs; and 2) to be able to avoid having to
distinguish whether undeclared material that might be discovered is the
result of new production (prohibited) or existing stocks (allowed). It would
be quite surprising if the NWS were to accept any type of safeguards on
what would obviously be national security facilities. This debate would be
an integral aspect of considerations on whether all civil and military
existing stocks would be covered by FMCT. Such safeguards, of course,
would be part of a treaty based verification regime that the United States
now wishes to avoid as evidenced by the conspicuous absence of
verification in the draft FMCT.
Clearly understanding the difficulty that this issue presents, some have
suggested a mere commitment in FMCT to negotiate the issue of existing
stocks at a date after the entry-into-force of a FMCT. It could also
encourage voluntary declarations of existing stocks of military fissile

286. Safeguards generally refer to measures an inspecting agency, such as the IAEA, uses to
ensure that no nuclear material is being diverted to unlawful uses such as nuclear weapons
production. For NWS such unlawful purposes would include the use of newly produced fissile
material (after FMCT entered into force) for nuclear weapons or the transfer of fissile material to
NNWS. See IAEA Web Site, at http://www.iaea.org.
material.287 That would be far more palatable from the NWS and non-NPT
state point of view. It should be reasonably clear, however, that this issue,
coupled with the issue of declarations of existing stocks, provide enough
divisive matters to keep negotiations going for many years. To add
verification to this mix would almost guarantee eternal gridlock.
D. Enrichment and Reprocessing Facilities

Such facilities are essentially where fissile material is produced, and
defining them would be vital to a FMCT. Many decisions would have to
be made in this regard. Any exclusion for naval propulsion would be
considered both here and in a possible national security exclusion section.
Treatment of “downstream” (after production) permissible activities would
have to be resolved as would the exclusion of any de minimis activities.
In the case of enrichment, uranium mined from the ground contains less
than one percent U-235 and more than 99 percent U-238. Enrichment
facilities increase the fraction of U-235 isotopes relative to U-238.
Enrichment by centrifuge technology is the most common method in use
today.288 These specialized centrifuges spin at above the speed of sound
and pass the uranium hexafluoride (UF6) gas with concentrated or
depleted U-235 from centrifuge to centrifuge, with each step further
enriching the U-235 isotope compared to U-238.289 To attain a reasonable
production rate, hundreds or thousands of centrifuges are required,
working in parallel in a cascade.290 Low enriched UF6 is typically
converted to uranium oxide “for fuel” while highly enriched UF6 will be
converted to metal, which can be shaped into the “pit” or heart of a nuclear
weapon.291
Plutonium is the other element that is the most obvious choice for
nuclear weapons, and to obtain Pu, spent fuel must be reprocessed.
Reprocessing involves the removal of spent fuel rods from reactors,
chopping them up, and then using nitric acid to dissolve them.292 The
resulting liquid is then chemically separated, typically into three
streams—plutonium, uranium, and the highly radioactive waste
products.293 Weapon grade Pu, containing 90% or more Pu-239, usually
287. Bragin et al., supra note 276.

288. See Uranium Enrichment, at http://www.ead.anl.gov/uranium/guide/depletedu/enrich/
index.cfm.
289. Id.
290. Id.
291. Id.
292. Id.
293. Uranium Enrichment, supra note 288.
comes from dedicated production reactors. Power reactors normally

produce reactor grade plutonium, which contains over 20% Pu-240 and is
therefore less suitable for weapons use. Whatever the isotopic
composition, the Pu from reprocessing is usually chemically converted to
oxide, but may also be converted to metal.294
A certain aspect of this debate would hinge upon the agreed uses of
such facilities. The most important issue to some NWS, for example,
would be to ensure that HEU for naval propulsion purposes could still be
manufactured. The issue of safeguards over such a process would be
avoided completely if no verification regime were negotiated.
E. Facilities Covered
To the extent that a verification regime is being negotiated, the
conferees would have to decide which facilities would be declared under
the treaty, and which would not be declared. This is an important concept
in some arms control treaties; for example in the CWC, the states parties
provide a list of all facilities that are capable of chemical weapons
production.295 Most states would probably agree to declare
decommissioned nuclear facilities where no production activity takes
place. Such a declaration would be relatively easy to verify. Most parties
would likely wish to see active nuclear facilities of any kind be declared
from research reactors to active nuclear weapons facilities.
Once again, choices will hinge on the philosophical approach that the
CD takes to a FMCT and whether it is to be broad or narrow in
application. For example, on the narrow end of the spectrum, only
enrichment and reprocessing plants would be declared facilities. If the
treaty were intended to be expansive in its coverage, however, the
delegates would need to consider storage facilities,296 shipyards capable of
handling nuclear powered ships,297 HEU/LEU fabrication processing
facilities, disposal facilities, nuclear power reactors, experimental facilities
and hot cells including research reactors, research and development
facilities, training facilities and critical assemblies.
The definition of facilities is crucial in determining how expansive the
treaty will be. If defined broadly, it could cover all civilian and military
reactors, to include reactors and all experimental activities. The more
294. Id.
295. See CWC, supra note 66.
296. Such facilities would be for storage of nuclear materials and not nuclear weapons.
297. The United States would likely be unable to agree to inclusion of any naval reactor
facilities on an eligible facilities list due to the risk of compromise of classified technologies.
expansive the coverage, the more expensive and intrusive a verification

regime would be.
F. Duration
The CD conferees will have to decide on an appropriate initial term for
a FMCT to be in force. They might take the approach taken by the NPT
negotiators. The NPT was effective for 25 years, unless extended
indefinitely or for a fixed period or periods in 1995.298 The U.S. draft
proposes 15 years.
Given the importance of the treaty, the parties may wish to make
withdrawal fairly difficult, although such treaties generally have a standard
“supreme national interest” withdrawal provision.299 Such withdrawal,
however, could be made contingent upon a lengthy notice period, such as
two years rather than the 90 day period specified in the NPT. The U.S.
draft proposes a three month notice period. Regardless, under international
law the standard treaty withdrawal provisions are: (1) indefinite duration
with a right to terminate; (2) duration for a fixed period with the possibility
of extension; (3) indefinite duration with a conditional right to withdraw;
(4) duration until a specific event occurs with no termination provision; or
(5) duration for a period of years with no provision for extension or
withdrawal.300
XVI. BASIC OBLIGATIONS

All agreements obligate parties to do or refrain from doing certain
things. A FMCT would be no different. Once key terms are defined,
298. See NPT, supra note 27, art. X(2). This is significant, however, since the treaty history
shows some significant disagreement on this issue. For example, during the NPT negotiations at
the Eighteen-Nation Conference on Disarmament, Nigeria submitted a working paper which would
have given the treaty “unlimited duration,” but would have allowed withdrawal from the treaty not
only based upon the “supreme interests” clause, but also if “the aims of the Treaty are being
frustrated.” United Nations, Eighteen-Nation Conference on Disarmament, Working Paper
submitted by Nigeria, U.N. Doc. ENDC/202 (1967). Many nations currently view the lack of
progress on FMCT as frustrating the aims of the NPT.
299. NPT, supra note 27, art. X (containing such a typical withdrawal clause). This provision
allows each party to withdraw if it decides that “extraordinary events, related to the subject matter
of this Treaty, have jeopardized the supreme interests of its country.” Id. A certain period of
advance notice, (three months in the NPT), is required prior to withdrawal, and the withdrawing
country usually must provide a statement of the extraordinary events it regards as jeopardizing its
supreme interests.
300. See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 225-29 (2000).
negotiators will have to decide what it is that the parties to the agreement
must do. Negotiators may not proceed sequentially and could well end up
defining key terms later in the negotiations. This often results when a
particularly contentious issue arises. Negotiators then “bracket” the text,
indicating that no agreement has yet been attained, and then proceed to
tackle other issues.
A. Verification and Monitoring

An obligation frequently included in arms control and nonproliferation
treaties is the acceptance of verification measures from an international
inspectorate. But verification of FMCT is problematic at best, and, for that
reason, the United States is not prepared to negotiate a verification regime.
It is important to note the various issues inherent in a verification regime,
to understand how far less complex and acrimonious FMCT negotiations
would be without it. There even exists a significant variety of opinion on
whether a FMCT is actually verifiable.
While the Bush Administration has concluded that it would be
practically impossible to make a FMCT effectively verifiable, others,
including John Carlson of the Australian Safeguards and Nonproliferation
Office, maintain that it would be possible.301 Carlson points to the example
of the Trilateral Initiative between the United States, Russia, and the
IAEA, which has demonstrated that it can be practical to verify fissile
material of sensitive shape, composition and mass.302 He suggests a similar
mechanism for verification of naval fuels.303 Of course there are great
differences in the scale of operations between the verification of “pits”
from nuclear weapons under the Trilateral Initiative, and the verification
of naval fuels. Additionally, the Trilateral Initiative involved nuclear
weapon pits in storage containers in known locations.304 A truly verifiable
FMCT would have to be able to detect undeclared, clandestine enrichment
and reprocessing activities.
301. Carlson, supra note 24.

302. See Thomas E. Shea, Report on the Trilateral Initiative; IAEA Verification of Weapon-
Origin Material in the Russian Federation and the United States, 43 NUCLEAR SECURITY &
SAFEGUARDS (2001), available at http://www.iaea.org/Publications/Magazines/Bulletin/Bull434/
article9.pdf.
303. Id. Naval fuels must be permitted under a FMCT and such production of HEU for naval
reactors would be consistent with the 1972 model Comprehensive Safeguards Agreements,
INFCIRC/153, which allows for nuclear material to be withdrawn from safeguards for non-
proscribed military activities. See also Du Preez, supra note 130.
304. See Shea, supra note 302.
Carlson concedes that it would be impractical to have an FMCT

verification regime of wide scope, which would include all nuclear
facilities and materials except existing stocks and nonproscribed military
activities such as naval propulsion.305 The other option, which he
recommends, is the “focused” approach which would only concentrate on
the most proliferation sensitive fissile material production
facilities—specifically enrichment and reprocessing facilities.306
To the extent that a FMCT might be effectively verifiable, due to the
potential of great cost, some wish to consider different levels of
verification intensity depending upon the state in question.307 It does makes
sense to expend substantial resources conducting significant verification
activities in states with small or no nuclear arsenals, since if such states
violate a FMCT, their actions could have a great impact on the strategic
situation in the region. On the other hand, it would be irrational to expend
significant resources on verification in states such as the United States and
Russia that have so much fissile material that they are disposing of it, and
thus have no obvious incentive for noncompliance.
The verification standard could be to detect militarily significant
violations. A relatively modest violation (production of 8 kilograms of Pu
per year, for example) might be militarily significant in Pakistan, but not
in the United States or Russia. Of course, existing IAEA safeguards may
make FMCT verification pointless in most NNWS.
The safeguards associated with an FMCT would have three

purposes: verification, timely detection, and deterrence. First, an
FMCT must include means to verify that fissile material is not
produced or acquired outside international safeguards after entry
into force, and that safeguarded fissile material is not diverted for
use in nuclear weapons or other nuclear explosive devices, or for
purposes unknown. Second, an FMCT must allow timely detection
of undeclared production or diversion of fissile material. Finally,
FMCT safeguards must deter undeclared production or diversion by
the risk of early detection.308
All of these safeguards, of course, are problematic for many nations

that will be key participants in any FMCT negotiation. Intrusive
305. See Carlson, supra note 24.

306. Id.
307. Id.
308. Bragin et al., supra note 276, at 100.
inspections are undesirable for many reasons including national security,

cost, and sovereignty.
Just one of the difficulties in the establishment of a verification regime
is defining what is meant by verification. The term is used in several
different ways. In its most comprehensive sense, it may refer to “any
activity aimed at the acquisition and use of information about others’
behaviour [sic] in a particular sphere.”309 A second view pertains more to
evaluating compliance with a specific treaty, and that may entail
differentiating between verification and monitoring. Monitoring refers to
detecting, identifying and measuring developments and activities of
interest while verification is linked to the pursuit and practice of arms
control.310 There is another view of this distinction within the arms control
sphere. Monitoring covers the activities of measuring and observing, while
verification is the act of drawing conclusions from monitoring and other
sources of information. Thus international organizations would prefer
monitoring while verification is the province of states. The CWC was
constructed that way, but IAEA safeguards call on the agency to perform
verification, which includes drawing conclusions. A third view limits the
concept of verification further, to include only activity aimed at proving
or disproving that a treaty has been violated.311 In this sense a party could
be nearly certain that another party is guilty of a violation without being
able to verify that such is the case.312 A final view reserves the concept for
bilateral or multilateral measures that are directly related to a particular
agreement: that is, whether states parties observe their mutual treaty
obligations. This usefully distinguishes such activities in verification from
espionage and intelligence gathering.313
In today’s “high tech” world most states should have the means to
verify compliance and should do so. Whether sharing of such information
among states could ever displace international verification organizations
is debateable.
Regardless, where at least one party has an incentive to violate the
agreement, effective verification can play a vital role. Where, as with a
FMCT, effective verification may be impossible, (as the United States
maintains), the task is to make a FMCT without verification still
309. JON HOVI, GAMES, THREATS AND TREATIES, UNDERSTANDING COMMITMENTS IN

INTERNATIONAL RELATIONS 114 (1998).
311. Id.
312. Id.
313. Id. at 114-15.
meaningful and effective. The general assumption is that the IAEA314

would likely be designated to function as the inspection agency were there
to be a verification regime. That view, however, is not universally held.
The IAEA is known as the nuclear “watchdog” agency with expertise in
the peaceful uses of nuclear energy.315 Even if it was to be selected, by
consensus, for this function, the cost of such a regime could prove
prohibitive. IAEA safeguards budgets could require tripling in order to
apply such comprehensive safeguards.316 The IAEA budget for 2004 was
$268,534,000 of which $102,278,000 was for nuclear verification.317 And
since the IAEA budget is only now undergoing its first significant increase
after nearly two decades of “zero real growth,” significant increases in the
safeguards budget could be difficult to achieve, unless the parties could
agree to such increases for the express purpose of FMCT verification.
Before this budget increase, the IAEA Director General has emphasized
that without additional funding, new missions would be impossible to
accept.318
Some states favor the creation of a new agency specifically to conduct
verification inspections. Others recommend having regional organizations,
such as the European Atomic Energy Community (Euratom) handle as
many of the safeguards inspections as possible.319 Euratom already
performs safeguards functions at all civil nuclear facilities in the European
Union including France and the United Kingdom.320
In the CWC, the OPCW performs inspections.321 The CWC provides
for both “routine inspections” and “challenge inspections.”322 Challenge
inspections occur when there is suspicion that a party is violating the treaty
outside of declared production facilities.323 In such situations, the
314. The IAEA plays a vital role in verification of the NPT. The Statute of the International
Atomic Energy Agency, opened for signature Oct. 26, 1956, 8 U.S.T. 1095, 276 U.N.T.S. 4,
entered into force July 29, 1957.
315. Profile of the IAEA, at http://www.iaea.org/worldatom/About/Profile/ (last visited Mar.
20, 2005).
316. Id.
317. International Atomic Energy Agency, About IAEA: Budget, available at http://www.
iaea.org/About/budget.html.
318. Interview with the Director General of the IAEA, Mohamed ElBaradei, Aug. 24, 2000,
cited in Roberts, supra note 39, at 41. See also William Drozdiak, U.N. Atomic Energy Agency is
Threatened by Financial Crisis, WASH. POST, Aug. 8, 2000, at A1.
319. Berkhout et al., supra note 194, at 193.
320. Id.
322. Id.
323. Id.
inspectorate has authority to search nearly anywhere in the territory of the

state, well beyond the areas where routine inspections occur.324
While the OPCW has the authority for challenge inspections, none
have thus far been requested by any state.325 Over twelve hundred routine
inspections of declared facilities have been accomplished in fifty-one
states.326 Only twenty-seven states are not party to the CWC.327 Of course,
the United States has stated that it does not view a FMCT as practically
verifiable.328 This is similar to the American view regarding the BWC329
and, according to some, the CTBT.330
The Bush Administration has not offered a public explanation of the

specific concerns that led to the conclusions of its interagency
review. It appears that (a) officials concluded that far-reaching
inspection rights would be needed to uncover possible covert
nuclear material production facilities, and that giving other
countries such inspection rights in the United States might pose a
danger of compromising U.S. secrets; (b) even such a far-reaching
inspection regime might not be able to provide high confidence that
covert facilities would be detected before they could be producing
nuclear bomb material; and (c) such a wide-ranging inspection
regime would be quite expensive. Since challenge inspections could
potentially be requested virtually anywhere, the secrets potentially
at risk might not even be nuclear secrets.331
Arms control theologians tend to be quite dismissive of the above

concerns. What is so rarely factored into the equation is that it is a far
different matter for the United States, with its vast international security
324. Id.
325. Id.
327. See Mission Statement of the OPCW, at http://www.opcw.org/html/intro/mission_
statement.html.
328. See CTBT, supra note 64.
329. Kerry Boyd, BWC Review Conference Meets, Avoids Verification Issue, ARMS
CONTROL TODAY, Dec. 2002, available at http://www.armscontrol.org/act/2002_12/bwc_dec02.
asp.
330. See, e.g., Chris Hellman, The Bush Administration: What Can We Expect for the
Pentagon?, FOREIGN POLICY IN FOCUS, Dec. 2000, at 1, at http://www.fpif.org/pdf/gac/
0012pentagon.pdf.
331. See Daryl G. Kimball, The Bush Administration and the Fissile Material Cutoff Treaty:
Reversing Course on Verification, Arms Control Association Press Roundtable, Sept. 2, 2004, at
http://www.armscontrol.org/events/FMCT_Excerpts.asp.
obligations, to sign such a treaty, than, for example, for Cameroon to do

so. In fact, for almost any NNWS, it is a simple matter to advocate for a
FMCT. Such states need do virtually nothing different than they were
doing before signature and there is no additional cost. Thus does the Holy
See, to use a good example, sign the CTBT at no real expense to itself. The
Vatican provides a clear example of a state that has no intention of
developing or testing nuclear weapons. “Coincidence of interest” thus
explains why many states sign multilateral arms control treaties.332 The
United States, obviously, is in a rather different position than the Holy See.
As is so often the case with respect to arms-control

agreements—the landmines movement comes to mind – the United
States is simply not in the same position as other states, at least as
long as it continues to assume global security responsibilities, and
therefore should not be shamed by charges of hypocrisy when it
fails to adopt to regimes that it urges on others. 333
Of course, this does not even consider the fact that the United States bears
a 22% share (as one out of 192 Member States) of the operational
expenses of the United Nations itself, and of the IAEA in particular, at
approximately 25%.334 As a typical example, of the CTBT Preparatory
Commission budget of about $90 million, the United States pays about $20
million annually.335
Since there appears to be no such entity as a “pro-nuclear weapon”
group, (except perhaps for the NWS), all the non-governmental
organizations (NGO) that weigh in are anti-nuclear weapon and therefore
pro-FMCT. None appear to have carefully considered whether the new
Bush Administration stance on verification might actually provide the
impetus for negotiations on FMCT.
By contrast, cutoff advocates argue that: (a) inspections of declared

facilities—such as reprocessing and enrichment plants—coupled
with a limited approach to “complementary access” at other
332. See JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 89
(2005).
333. PHILIP BOBBITT, THE SHIELD OF ACHILLES, WAR, PEACE AND THE COURSE OF HISTORY
691 (2003).
334. See U.N. Funding Fact Sheet, at http://www.unausa.org/site/pp.asp?c=fvKRI8MPJpF&B
=667579 (noting that the U.S. FY07 Budget request for the IAEA was $83.1 million. The IAEA
budget was $273.6 million in 2006). See About IAEA: Budget and Finance
http://www.iaea.org/About/budget.html. The U.S. Constitution, then, is over 30% of the budget.
335. See Pomper, supra note 239.
locations, as called for under the International Atomic Energy

Agency’s Additional Protocol, would provide far higher confidence
in compliance than would exist without verification provisions; (b)
inspection arrangements could be negotiated to allow far-ranging
challenge inspections while protecting national security secrets, as
was done, for example, with the Chemical Weapons Convention,
which also permits wide-ranging inspections in the United States;
and (c) the additional cost of a fissile cutoff verification regime
would be modest compared to its security benefits, in the range of
a few tens of millions of dollars per year.336
But there are other reasons for NNWS to desire that the NWS and non-
NPT states bear the burdens of verification, should such a regime ever be
established.
Proponents of a more comprehensive verification regime argue that

it would foster greater transparency among the five NWS, lessen
mutual suspicions among them, and enhance wider confidence in
their compliance. At root, however, their advocacy of this approach
reflects a strong underlying political interest in equalizing the
burden of safeguards. In effect, the regime would be designed not
simply to monitor the shutdown of production activities related to
nuclear weapons, but to bring under international inspection all
non-military nuclear activities in the NWS. It would monitor any
residual production of plutonium and HEU as well as the status of
former production plants and spent fuel.337
Types of monitoring would only be appropriate where there is a

verification regime since monitoring implies aspects of verification.
Monitoring generally means that the international inspectorate tasked with
verification will place tags, seals, and cameras on fissile material
containers and production facilities at declared sites. In the safeguards
context, this refers to the use of instrumentation and all technical
measures. Safeguards inspections normally involve inspectors checking
336. See, e.g., Fissile Material Cutoff Treaty, Nuclear Threat Initiative, at http://www.nti.org/
e_research/cnwm/ending/fmct.asp (noting that “this new position made successful negotiation of
an agreement in the near term even less likely than before.”). The author then injects some welcome
realism, in stating the obvious: “Even before the Bush Administration’s announcement, however,
negotiation of an FMCT had been stymied for years and seemed to have little likelihood of moving
forward soon.”
tags and seals on equipment. Some states may object to standard

safeguards measures at production facilities which they consider sensitive.
The ability to monitor declared sites is generally accepted. Since the new
U.S. approach accepts no verification and monitoring,338 and this can often
be one of the most contentious aspects of treaty negotiations, significant
time may well be saved by not having any verification and monitoring to
negotiate.
A FMCT without verification could still result in a legally binding
treaty, if negotiated as such, but would have no “teeth” based upon actions
which might be taken against violators due to the verification regime. The
U.S. draft text proposes a legally binding treaty. Another option might be
a non-legally binding agreement, which would include no verification
protocols. Should the need for a FMCT verification regime be apparent
after an FMCT sans verification enters into force, (or is signed, if not
legally binding), then it could be negotiated at a later date, after the new
norm of FMCT attains increased international acceptance.
If there were to be an inspection regime, some states would likely only
accept minimal verification and monitoring narrowly defined and limited
to declared production facilities. Inspections can take many forms.
Environmental sampling, while unlikely to be a central tool in FMCT
verification, is one means that an inspection agency might use to monitor
compliance. Environmental sampling is a critical tool in standard
safeguards practice. But for states which have already produced fissile
material, it may not be a useful tool. Some states would likely not wish to
authorize environmental sampling, meaning the taking of samples of air
or water near production sites for analysis. Objections are likely because,
for some states, it would potentially compromise secret programs, or, for
other states, would be a likely means of detecting cheating.
The desire of the NNWS to see the NWS bear an equal burden in
inspections in the NPT is a strong motivator and one of the many reasons
that the push for FMCT negotiations continues.
B. Headquarters Commission
A treaty of this type may have some type of headquarters body, such
as the OPCW for the CWC. The NPT and BWC do not. If the CD decides
that no new inspectorate is required, then it is unlikely that there will be
any such body since the principal function of that body is to oversee the
verification regime. If the CD agrees that the IAEA would serve as the
inspectorate, the IAEA Board of Governors could serve as the executive
338. See U.S. Draft FMCT, supra note 14.

body for FMCT verification, as it does for safeguards under the NPT.
Alternatively, the Commission would ensure that the terms of the treaty
are being observed by all states, and would arrange regular meetings for
treaty review, new membership, amendment, and other matters. Disputes
would also be settled by such a Commission comprising representatives
of states parties. If a FMCT were to be non-binding, a Headquarters body
might not be required at all. In such cases, meetings could be held
annually, at the IAEA or the United Nations, or on the margins of
meetings already taking place at those fora.
C. Entry-Into-Force
In considering what mechanism to use for entry-into-force of a FMCT,
the delegates will no doubt wish to consider the case of the CTBT in detail
and attempt to avoid some of the clear pitfalls with that approach. After the
successful negotiation of a significant treaty, the world is left with a treaty
that may never enter-into-force. In fact, North Korea has now tested a
nuclear weapon, making it even less likely that North Korea will soon
accede or otherwise express its intent to be bound by the NPT or CTBT.339
If a FMCT were to be non-binding, there would be no formal entry-
into-force, since that legal concept applies only to legally binding
agreements. Given that the key states for FMCT are the five NWS, plus
India, North Korea, Pakistan, and probably Israel340 and given the lessons
of the CTBT, would the CD negotiating states really consider making
entry-into-force contingent on the ratification of all ten of those states?
Most probably not. It would be more likely that they would permit entry-
into-force to occur once some percentage of those states had signed a
FMCT, or some fixed number of total states had ratified it, regardless of
their nuclear capabilities, civil or military, or some combination or variant
of the above.
339. Gordon Fairclough, U.S. Warns China North Korea May Test Bomb Soon, WALL ST. J.,
Apr. 25, 2005, at A12.
340. Some might argue that Iran and North Korea are vital states for FMCT. In fact, so long
as Iran remains in the NPT and observes its NPT commitments, FMCT does not really improve the
situation. The NPT prohibition on nuclear weapons for Iran, if observed, goes well beyond the more
limited scope of a FMCT. Similarly, the international goal for North Korea is that it eliminates its
nuclear weapons and returns to the NPT. Accepting North Korea’s FMCT ratification as a
substitute for NPT compliance undercuts that goal. Making either Iran or North Korea critical to
FMCT’s entry-into-force gives each an effective veto on entry-into-force.
D. Financing
Any treaty with a headquarters staff and regular meetings of states
parties requires a significant budget. Of course, if there is no verification
regime, and hence no standing organization, the cost would be limited to
possible review conferences. The more staff, functions and office space
required, the larger the budget must be. Clearly verification would be a
major cost, so if there is no verification in the initial FMCT, it would be
a major cost savings. How any cost burden will be shared must be agreed
to by the conferees. Many states may not wish to accept the standard U.N.
contribution percentage scheme and may attempt to negotiate lower
payments. In the eyes of the NNWS, it is the NWS that should bear the
burden of the cost of nuclear disarmament treaties, and there is some merit
to that argument.
Since the CTBT has not yet entered into force, it has a “Preparatory
Commission,” rather than a fully functioning headquarters. That
commission began operations in 1996, while the actual CTBTO will
commence operations only when the treaty becomes effective. The
Preparatory Commission, co-located in Vienna, Austria with the IAEA,
has a budget of approximately $90 million.341 A FMCT Organization, if
created, might require a similar budget if it has verification duties similar
to the CTBTO, or in the alternative, the IAEA would require increased
funding if it assumed such duties.
XVII. WHY VERIFICATION IS PROBLEMATIC

A reliable verification regime, if it could be designed, would almost
surely need to be highly intrusive to be effective. Indeed, the more difficult
an issue is to verify, the more intrusive the verification regime would have
to be in order to assert findings with confidence. Some findings will be
easier to draw than others. For example, a conclusion of non-diversion
from declared facilities may be drawn with high confidence, while a
conclusion of the absence of undeclared production would be much
weaker. This conundrum contributed to the downfall of a BWC
verification regime, which was never attained. For example, it is fairly
easy to verify non-production of fissile material at a decommissioned
facility, but concluding that there are no undeclared production facilities
is another matter since detecting a clandestine enrichment or reprocessing
facility presents almost insuperable verification obstacles. Detecting
341. See Pomper, supra note 239.

diversion from operating facilities is a standard safeguards task. The

question is not so much whether it can be done but how much it will cost.
Since fissile material can conceivably be produced in relatively small
highly shielded and specialized areas, an expansive verification system
could make virtually all areas subject to search. This poses risks for any
nation that does not wish to invite the prying eyes of an international
inspectorate. It certainly has Fourth Amendment implications for the
United States, although these were resolved in the CWC and the
Additional Protocol.342
Since a reliable verification regime would require inspectors to inspect
anywhere they believe enrichment or reprocessing to be occurring, it
provides essentially a blank check to search anywhere within the bounds
of sovereign states. Of course unfettered access to every building in every
state is unlikely. Yet to the extent that such access is not granted,
verification must be less reliable.
The threshold for seeking such access is a critical issue. In the CWC,
the threshold is so high that challenge inspections are a remote concern.
Many states will simply be unwilling to provide unfettered access
everywhere. But truly unlimited access could only be imposed by defeat
in war, or some linkage to great incentives. Certainly, there are oppressive
regimes in states like Burma which, while probably not producing any
fissile material, do not want inspectors nosing around for other reasons,
which are more political than national security related. States may have
various reasons for not allowing inspectors access to any site they may
choose to inspect. While it might seem wise to seek a middle ground
between comprehensive access and no verification at all, the United States
is correct that if verification negotiations resulted in a compromise, which
is nearly certain in the multilateral realm, the agreement would be flawed
since it might be seen as promising more than it could possibly deliver.
This is the core of the argument. Inspections cannot be intrusive enough
to detect undeclared centrifuge plants without risking too much. Limited
verification would likely be worse than no verification since it would
provide a false sense of security. Such was the experience of the NPT
safeguards regime. Iraq, found to have a vast, hidden nuclear weapons
production complex in place in 1990, has been in compliance with its
safeguards obligations.343
The Iraq experience led to a better understanding of the limits of
verification with respect to clandestine programs, but also to a major effort

343. CHEN ZAK, IRAN’S NUCLEAR POLICY AND THE IAEA: AN EVALUATION OF PROGRAM 93+2
(2002).
to strengthen and transform the culture of the IAEA safeguards system.

Subsequent experiences in North Korea, Iran, Libya, South Korea, and
Egypt demonstrate a more diligent IAEA approach to verification. For the
NWS and India, Israel, North Korea, and Pakistan, there are numerous
national security concerns that may be difficult to address. For example,
to consider some of the concerns of the United States alone, there is the
potential compromise of classified naval fuels technologies, potential
compromise of nuclear weapons materials and non-nuclear technologies
in nuclear weapons. There may also be certain defense programs entirely
collateral to nuclear programs ongoing at nuclear sites. These and other
risks must be considered.
The list of concerns goes on. The U.S. Navy does not wish its ships to
be boarded by foreign inspectors due to concerns about the erosion of the
principle of the sovereign immunity of warships. While consent to
boarding ships would negate any breach of sovereign immunity, as it
would on land, the Navy is also concerned with setting an undesirable
precedent. So should ships be excluded from a verification regime? If so,
it is conceivable that a state could enrich or reprocess nuclear material at
sea344 in order to evade the mandates of a FMCT.
Of greatest import in the arguments against verification is the fact that
it may not be able to provide the degree of assurance states would require,
and to the extent that a verification regime is not able to offer such
assurances, the imposition of such a regime would be remarkably
counterproductive. This is because great political capital will be expended
in the negotiations of a FMCT and it hardly seems worth the political and
economic cost for an ineffective verification regime. If some consider the
CTBT unverifiable,345 how much more must this apply to the far less
visible and detectible production of fissile material?
The United Nations mandate calls for an effectively verifiable

agreement. While not defined, this generally means there is a high
degree of certainty that cheating would be detected. Unfortunately,
while the technology continues to improve, it is unlikely that the
IAEA or anyone else will be able to detect with high confidence the
344. The author is unaware of any instance in which this has been done, but it is surely
feasible. Many ships are large and provide plenty of space for enrichment and reprocessing. Secrecy
would be nearly assured on a vessel at sea although it would not be cost effective. Economy is
rarely a goal in the production of fissile material, though, and a reasonably effective verification
regime could make this an attractive option. In fact, Russia has proposed floating reactors.
345. See Helms, supra note 108. The view that the CTBT is unverifiable was one of the
reasons why some Senators voted against giving advice and consent to ratification of the treaty.
clandestine production of fissile materials either at an undeclared

site or undeclared production at a declared site. The experience of
the IAEA with Iraq and North Korea where two NPT parties with
safeguards agreements were able to cheat despite being subject to
IAEA inspections is telling. Despite technological improvements
and a more intrusive safeguards regime, it is highly unlikely a
clandestine program could be detected in states determined to
cheat.346
This supports the U.S. position and illustrates that the technologies
available today are not equal to the task of finding covert enrichment and
reprocessing activities in vast nations. And even if such technologies could
be utilized, free rein to use them cannot be realized.
There is no question that a FMCT would have some effect with or
without a verification regime, particularly in states that honor their
international commitments. The key would be to make clear that a FMCT
does not legitimize the possession of nuclear weapons by any state not
specifically recognized as a NWS in the NPT. If a FMCT were to exempt
from safeguards existing stocks of fissile material in the NWS as well as
in India, Israel and Pakistan as the NWS have made clear is their
preference, then another class of state besides NWS and NNWS would
effectively be created.
Some in India would like to see its program explicitly recognized under
the NPT and given some status such as “nuclear capable states.”347 Certain
conditions may have to apply to North Korea, since, of the four non-NPT
states, it is the only state that withdrew from the NPT and such conduct
must not be rewarded. Some might question whether it is worse to
withdraw from the NPT or to fail to join at all, but that is an issue for
another day. Until recently, North Korea has been relatively successful in
resisting international pressure to cease its nuclear weapons program and
to honor its NPT commitments. This can only encourage other potential
proliferators.
The problems with any such recognition or increased prestige for these
states is that it would avoid pressure for them to follow the South African
model of nuclear disarmament—that of destroying nuclear weapons,
declaring them, and acceding to the NPT as a NNWS. But none of the non-
346. Roberts, supra note 39, at 41. In fact, the IAEA determined that North Korea was
cheating quite quickly. After that, it was prevented by the Agreed Framework from attempting to
verify correctness and completeness of declarations.
347. K. Subrahmanyam, Export Controls and the North-South Controversy, 16 WASH. Q. 135-
44 (1993).
NPT states are inclined to accede to the NPT as NNWS in the near future.
Some might argue that they would be far more likely to accede to the NPT
if they were FMCT signatories. The converse to that argument is that the
NPT would ultimately be enormously strengthened and the
nonproliferation norm restored by the accession to a FMCT of the only
non-NPT states. Their affirmative acceptance of limits on their nuclear
weapons programs would be a significant confidence building measure, at
a minimum.348
Another concern is that a FMCT could become a recognized alternative
to the NPT for two types of states: current NPT NNWS considering
withdrawal from the NPT, which could withdraw, produce fissile material,
and then sign the NPT and FMCT; and other states that may wish to
withdraw from the NPT, produce fissile material and then keep that
unsafeguarded stockpile for whatever purpose they desire. Meticulous
treaty drafting would be called for and it would be critical to avoid such
scenarios, with a provision, for example, prohibiting states that have
withdrawn from the NPT from joining the FMCT.349
Suggestions to prevent NNWS from looking to a FMCT as an
alternative to the NPT include: assurance of an equally or more intrusive
verification system (which would be inapplicable if there was to be no
verification) and assurance that FMCT signatories would not receive the
same preferences for nuclear exports and other favorable treatment as NPT
states. This means that FMCT participation would not be a substitute for
IAEA fullscope safeguards under the Nuclear Nonproliferation Act350 or
the NSG Guidelines, both of which require such safeguards as a
prerequisite for nuclear exports.351 In other words, NPT accession brings
certain rewards to states in good standing. While some benefits may be
crafted to encourage FMCT participation, NPT participation must still be
the “gold standard.”

349. Id. This is a difficult issue, though, since ultimately the international community would
find it preferable to have them inside the FMCT regime, even if outside the NPT. This provision
would apply after entry-into-force of the FMCT so as not to preclude North Korean accession to
a FMCT.
350. Nuclear Non-Proliferation Act of 1978, 22 U.S.C. 3201, P.L. 9-242, 92 Stat. 120 (Mar.
10, 1978).
XVIII. A NATIONAL SECURITY EXCLUSION ?

Some claim that one possibility for solving the myriad problems that
verification poses is to permit a national security exclusion to the NWS.
But the perceived need for such an exclusion is one of the primary factors
that led the United States to its position on verification. There is precedent
for this in the U.S. Voluntary Offer Safeguards Agreement with the IAEA
and the Additional Protocol to that agreement. This would allow the NWS
to continue their nuclear weapons programs without concern for the prying
eyes of inspectors, since it would enable the NWS to exclude inspectors
from any area of national security concern. This is defensible under the
NPT, since that treaty requires NWS to protect information that would
assist NNWS in the manufacture of nuclear weapons.352 A national
security exclusion, limited to the NWS, would establish a FMCT as a
clearly discriminatory regime. Since the NPT is objectionable for that very
reason, and the Shannon Mandate includes the term “nondiscriminatory,”
such an exclusion will likely be opposed by others.
A corollary issue is whether the non-NPT states would be included in
such an exclusion. If so, it would raise issues of adverse impact upon the
NPT. To the extent that they were not permitted a national security
exclusion, which NWS were granted, they would almost surely not accede
to a FMCT.
Because a national security exclusion (NSE) would be objectionable to
many states, as a practical matter, it would need to be narrowly drafted.
For the United States, this would likely mean prevention of access to both
active nuclear weapons facilities and operational naval nuclear propulsion
systems and production. Additionally, operational military bases and ships
would be excluded and managed access during inspections would have to
be assured.
One method utilized in established verification regimes in sensitive
areas is managed access. For example, a state may shroud certain sensitive
pieces of equipment while still permitting inspectors access to a site or
building. But for certain areas where managed access might be
insufficient, the NSE could be invoked, and access to a requested area
would be denied.
The complications of a NSE militate in favor of the non-verification of
a FMCT. With no verification regime, there is no need for such an
exclusion. Of course, one may contend with the predicate of a NSE since
the issue is really about the conditions to be applied to inspections at
undeclared locations. The NSE in the U.S. safeguards agreement is not a
352. NPT, supra note 27, art. I.

viable model because, unlike the safeguards agreement, FMCT verification

would be aimed at limiting national security programs.
XIX. COMPARISON WITH OTHER RELEVANT ARMS CONTROL AND

NONPROLIFERATION AGREEMENTS
As noted earlier, even the NPT, one of the most vital elements of the
nonproliferation regime, moved incrementally to its current state. The NPT
entered into force in 1970. Although it requires NNWS to accept
comprehensive IAEA safeguards on all nuclear material in peaceful use,
the detailed safeguards arrangements were left for a separate negotiation,
which led to the adoption of the model safeguards agreement in 1972.
When lessons from Iraq demonstrated the need for expanded verification
authority, the comprehensive safeguards system was expanded and
strengthened in 1997 with the Additional Protocol.
Even strong proponents of a FMCT with a verification regime argue
that it would be sensible to pursue the NPT route for verification.353 The
NPT model was to establish the basic obligations first, including the broad
safeguards requirement, while allowing the technical issues of verification
to be considered separately. Naturally, the political will must exist to take
both steps, but the point is that it is often easier to move one step at a time.
For the United States, of course, such political will cannot be realized until
an effectively verifiable FMCT is viewed as realistically achievable.
Certainly the BWC followed the same path, with a basic treaty
negotiated without a verification regime, although attempts to add such a
regime at a later date have failed thus far. The CWC, which opted to
negotiate basic treaty objectives and a verification system in the same
document, successfully accomplished both in 1993.
The Convention on the Physical Protection of Nuclear Material354
(CPPNM), while it contains no prohibitions that require verification, is a
multilateral agreement that has progressed in a manner that could be
illustrative for a FMCT. This international convention requires parties to
ensure, inter alia, that nuclear material imported or exported for peaceful
purposes355 will receive physical protection during international transport

354. The Convention on the Physical Protection of Nuclear Material, Mar. 3, 1980, 18 I.L.M.
1419, entered into force Feb. 8, 1987 [hereinafter CPPNM]. The CPPNM is codified at 18 U.S.C.
831 (1994) and 22 U.S.C. 4831 (1994). The key IAEA document on the Physical Protection of
Nuclear Material is INFCIRC/225/Rev. 4.
355. The CPPNM does not apply to military nuclear material since it was generally agreed that
such material would have a higher level of physical protection already extant. Id. Also, states
consistent with the levels prescribed in the CPPNM. Additionally, the

convention mandates protection of such material within the territory of
states parties or on ships or aircraft under its jurisdiction and engaged in
transport to or from that state.356
The CPPNM is relevant to a FMCT since it took a long time to garner
support for it. It was initially crafted as a weaker agreement than many
deemed appropriate at the time. As is often the case in multilateral
negotiations, states settle for what is achieveable with the understanding
that perfect agreements are unattainable. The parties realized that the
agreement required strengthening, and began negotiations to amend and
strengthen it in 1998.
The CPPNM was drafted in the 1970s and entered into force in 1987
under the auspices of the IAEA.357 The CPPNM covers weapons-useable
nuclear materials and mandates several preventive measures that are
applicable only during international transport.358 The convention also
makes certain acts criminal, including theft and illegal acquisition,
possession and use of nuclear materials in international or domestic transit
or storage.359 All other matters of handling nuclear materials are left to the
states to decide.360
The IAEA published preventive measures that states should take to
properly secure nuclear materials from theft and to protect nuclear
facilities from sabotage.361 While these are termed “requirements” they are
possessing such material undoubtedly wanted a bright line between nuclear material for civil and
military use.
356. Other mandates of the CPPNM include establishing frameworks for cooperation for the
protection and return of stolen nuclear material and for the exchange of information to further the
recovery of such stolen material. Additionally, it defines acts that states parties should make
criminal. See Patricia A. Comella et.al., Revising the Convention on the Physical Protection of
Nuclear Material, Papers presented to the annual meetings of the Institute for Nuclear Materials
Management, 2000-2003.
357. The IAEA is the depositary of the treaty but is also intimately involved in its
implementation. The IAEA works closely with the states party to the CPPNM and has published
guidelines for the physical protection of nuclear material which are fully consistent with the
CPPNM. See IAEA INFCIRC/225/Rev. 4, The Physical Protection of Nuclear Materials and
Nuclear Facilities, available at http://www.iaea.org/Publications/Documents/Infcircs/1999/
infcirc225r4c/rev4_content.html.
358. See CPPNM, supra note 354, art. II, ¶ 1.
359. Id. art. VII.
360. See Larry D. Johnson, The Threat of Nuclear Terrorism and September 11th: Wake-Up
Call To Get The Treaties Right, 31 DENV. J. INT’L L. & POL’Y 80, 83 (2002).
361. The Physical Protection of Nuclear Material and Nuclear Facilities, at http://www.iaea.
org/worldatom/program/protection/inf225rev4/rev4<uscore>removal.html (last visited Mar. 25,
2005).
only legally and factually recommendations.362 Therefore, the parties

decided in 1999, based on an American initiative, to begin a review
process to consider if and how the CPPNM could be strengthened. The
United States initially recommended making the IAEA guidelines binding
and including in the CPPNM a means by which states could be held
accountable for what they do or fail to do in securing their nuclear material
and facilities.363
One would think that this would not be a contentious proposition, yet
these proposals were opposed by U.S. allies for a variety of political
reasons.364 This illustrates how difficult multilateral negotiations can be
and how opposition can appear in unexpected places. Based on the
opposition, the United States accepted a compromise by which the
CPPNM was expanded to cover domestic use, storage, and transport of
nuclear material as well as sabotage of nuclear facilities—but no new
preventive measures are required.365 Negotiations366 have progressed since
then on an amendment to strengthen the Convention, and after extensive
and protracted negotiations, the process concluded in 2005 with a
Diplomatic Conference held at the IAEA, which agreed to proposed
amendments to the CPPNM which now await ratification by states parties.
XX. CONCLUSION
Today the United States is viewed by some as having relinquished its
role as the leader in arms control and nonproliferation agreements in
particular and multilateral agreements in general. From a failure to sign the
Kyoto Protocol367 to the Ottawa Treaty on landmines,368 to its persistent
opposition to the Statute of the International Criminal Court,369 the United
362. See Johnson, supra note 360, at 83.

363. Id.
364. Id.
365. Id.
366. The author has participated, as a member of the U.S. delegation, in several of the
conferences in Vienna regarding the process of amending the CPPNM, including the Diplomatic
Conference concluding the amendment process in 2005.
367. Kyoto Protocol to the United Nations Framework Convention on Climate Change,
Conference of the Parties, 3d Sess., U.N. Doc. FCCC/CP/1997/L.7/Add.1(1997), reprinted in 37
I.L.M. 22 (1998), available at http://www/unfccc.de/resource/docs /convkp/kpeng.pdf.
368. See, e.g., Wade Boese, U.S. Will Not Join Landmine Treaty; Position on Fissile Material
Cutoff Pact Uncertain, 34 ARMS CONTROL TODAY (2004), available at http://www.armscontrol.
org/act/2004_03/Rademaker.asp (last visited Feb. 10, 2005).
369. Rome Statute on the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998) (eff.
July 1, 2002), 37 I.L.M. 999 (1998).
States is no longer viewed as being particularly willing to play nicely with

others in the arms control sandbox.
It seems clear that the United States is less prepared to enter into
multilateral arms control treaties and evidences reduced
commitment to existing regimes. The Comprehensive Test Ban
Treaty was rejected by the Republican-controlled Senate in 1999.
The executive branch has walked away from negotiations to add a
verification protocol to the Biological Weapons Convention. After
a spirited domestic and inter-national debate, the executive branch
has also withdrawn the United States from the ABM Treaty, which
the Clinton Administration had not so long ago tried to transform
into a multilateral obligation either through interpretation or explicit
amendment.370
The above quotation is certainly factually accurate, if lacking in detail.

Reading such an excerpt devoid of context, it would seem that the United
States is no longer willing to enter into arms control treaties. That is
simply not the case, and in the examples cited by Professor Perez, the
United States had valid reasons for taking the actions it did. But the
criticism continues.371 The FMCT provides the United States with an
opportunity to illustrate that it is still very much a leader in multilateral
arms control agreements.
International agreements in the disarmament and nonproliferation
arena, such as a FMCT, are surely not a panacea, in and of themselves.
They are, however, at a minimum, useful objects in the American national
security toolbox. There are also times when negotiations for negotiation’s
sake can be important, as was the case during the height of the Cold War,
when the United States and former Soviet Union continued negotiations
even when there was no hope of reaching an agreement.372 Of course in
that circumstance the rationale for negotiations was to maintain an open
channel of communications in the event of an emergency.
One reason for FMCT negotiations today would be to at least provide
the appearance or assurance of progress and effort in the nuclear
nonproliferation and arms control spheres and because a FMCT does offer
370. Antonio F. Perez, Is International Law Relevant to Arms Control?: Delegalization of

Arms Control—A Democracy Deficit in De Facto Treaties of Peace?, 4 CHI. J. INT’L L. 19, 20
(2003).
371. See, e.g., Terry L. Deibel, The Death of a Treaty, 81 FOREIGN AFF. 142 (2002); Kerry
Boyd, U.S. Attempts to Sink BWC Review Conference, 32 ARMS CONTROL TODAY 27 (2002).
372. FRED IKLE, HOW NATIONS NEGOTIATE 43-45 (1976).
significant benefits to U.S. national security. It is also vitally important

that the United States and other NPT NWS make every effort to live up to
their NPT commitments in good faith.
Certain statements of Administration representatives, such as John
Bolton, the former Undersecretary of State for Arms Control and
International Security, and current U.S. Ambassador to the United Nations,
appear to bolster assertions of U.S. lack of interest in arms control. Such
statements reflect frustration with the pace and cost of multilateral
negotiations tied to institutions performing such functions as verification.
Frustration with the pace of a FMCT at the CD would certainly be justified
by any yardstick. And if there is no movement on disarmament matters at
the CD itself, it is only reasonable for nations to take matters into their
own hands and seek progress wherever possible.
The CD, however, cannot shoulder all of the blame for lack of
progress. If states really wanted progress, it could be attained in the CD.
The CD does not act as an independent brake on progress, but rather is a
tool that states use, or in this case do not use. Right now states are not
using it and are not explaining why. This means that some aspect of an
FMCT is objectionable, and for the United States and some others, it is
likely verification.
This issue to too complex to oversimplify. Different aspects of a FMCT
are objectionable to different states. For the United States, it was clearly
verification. For Egypt and Pakistan, it could be existing stocks. For
China, it may be the risk that missile defense will undermine its deterrent.
For others, it may be the lack of verification.
The United States has therefore moved out on other fronts. In
illustrating the particular effectiveness of the Proliferation Security
Initiative (PSI),373 in which states agree to cooperate on measures to
interdict shipments believed to contain WMD or related goods,
Undersecretary Bolton stated that, “[r]ather than requiring years
negotiating treaties and creating elaborate institutions, Resolution 1540374
373. The Proliferation Security Initiative (PSI) is more of a “counter-proliferation” initiative

rather than a nonproliferation measure. Bolton deems PSI an “activity, not an organization,”
because it is designed to halt trafficking in WMD, WMD delivery systems and related materials.
John R. Bolton, An All-Out War on Proliferation, FIN. TIMES, Sept. 7, 2004. The goal of PSI is to
enhance the operational capabilities of states in the intelligence, military and law enforcement areas
so that they may better halt WMD proliferation. Meeting Proliferation Challenges: UNSCR 1540
and the 2005 NPT Review Conference [hereinafter Meeting Proliferation Challenges], at http://
www.ti.org/e_research/official_docs/dos/dos031705.pdf.
374. U.N. Security Council Resolution 1540 calls on Member States to criminalize WMD
proliferation, enact export controls and secure sensitive materials within their borders. Bolton was
rests on the notion that sovereign states are responsible for writing and
implementing laws closing the loopholes exploited by black market WMD
networks.”375 Many might say that Bolton’s tone regarding treaties is an
understandable expression of frustration, at a minimum. That frustration
is fully appropriate at a time when days count as the United States girds to
protect itself from nuclear, chemical and biological terrorism. Regardless
of one’s view of the merits of PSI, it is a measured response to that
frustration, which has resulted in immediate action in support of
nonproliferation objectives.
But abandonment of traditional arms control and nonproliferation
measures, even with all of their flaws, is not the wisest course either. A
melding of nonproliferation and counter-proliferation measures is optimal.
Since perceptions are so important, it is best for the United States to be
engaged fully in the process of multilateral arms control and
nonproliferation. A FMCT, particularly in the absence of a verification
regime, offers this middle path for the United States.
If past is prologue, negotiations on an agreement such as the FMCT
may take years. Based upon the troubled history of the FMCT, it is
reasonable to speculate that it might require five years or more to
negotiate, having languished already for over a decade. Given the current
threat from nuclear proliferation, it is remarkable that action on such an
important issue can take so long. It is no wonder, then, that many senior
officials have lost faith in nonproliferation negotiations to solve this
problem.
Between the two ends of the continuum, with diplomacy and
nonproliferation treaties on one end and military action and counter-
proliferation on the other, if only one strategy could be employed as a
basis for U.S. national security, it would have to be counter-proliferation.
International agreements such as the CTBT, which raise national security
concerns, may actually provide a false sense of security that other states
are not developing nuclear weapons, as can treaty regimes which allow
international inspectors into other states. But to the extent that
nonproliferation regimes can buttress U.S. national security without
denigrating it, such regimes are worthy of support. FMCT without
verification can meet American needs by connecting with and reinforcing
U.S. counter-proliferation measures.
not implying that PSI and Resolution 1540 are the same. Meeting Proliferation Challenges, supra
note 373.
375. Bolton, supra note 373, at 14. See also John R. Bolton, War and the United States
Military: Is There Really “Law” in International Affairs?, 10 TRANSNAT’L L. & CONTEMP. PROBS.
1 (2000).
If the United States can illustrate that its new approach to a FMCT is
the catalyst for action, rather than additional evidence of the United States
presumed hostility to arms control and nonproliferation agreements, it
would enable the United States to prove to the world that it has not
forsaken traditional means of arms control and nuclear nonproliferation,
and to regain its leadership position in that vital sphere. This may surely
be accomplished consistent with and in furtherance of U.S. national
security goals.
Arms control can be no more than a tool of national strategy if it is

to be effective. It is an alternative to the other tool, the deployment
of weapons. But it must pursue the same goal of national security
strategy: to enhance security at the lowest possible cost and risk.
When arms control becomes an end in itself the consequences
become manifest: increased costs and more risk. Our arms control
and nonproliferation efforts must remain grounded in the single-
minded purpose of enhancing the security of the United States and
international peace and security generally. Otherwise we will have
less security, not more as we sign up to arms control or
nonproliferation agreements for the sake of having such agreements
even if they are unable to provide the security for which they were
intended.376


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THE NEW U.S.

APPROACH TO THE FISSILE MATERIAL

II. ROADMAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601

III. A NEW APPROACH TO A FMCT . . . . . . . . . . . . . . . . . . . . . 602

IV. FMCT BACKGROUND AND HISTORY . . . . . . . . . . . . . . . . . 605

V. THE CONFERENCE ON DISARMAMENT AND THE FMCT: A

VI. HOW TO ADDRESS NUCLEAR PROLIFERATION ? . . . . . . . . . 617

VII. NATIONAL SECURITY , NONPROLIFERATION , AND

VIII. FMCT AND THE NONPROLIFERATION REGIME . . . . . . . . . . 624

IX. WHY PURSUE A FMCT? . . . . . . . . . . . . . . . . . . . . . . . . . . . 627

X. THE TIME FOR A FMCT IS NOW . . . . . . . . . . . . . . . . . . . . . 638

XI. CUSTOMARY INTERNATIONAL LAW . . . . . . . . . . . . . . . . . . 639

XII. THE FMCT WITHIN THE BROADER NPT FRAMEWORK . . . 641

XIII. CRITICAL STATES PARTIES FOR THE FMCT . . . . . . . . . . . . 646

XIV. WHAT A FMCT WOULD LIKELY

XV. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649

XVI. BASIC OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

XVII. WHY VERIFICATION IS PROBLEMATIC . . . . . . . . . . . . . . . . 665

XVIII. A NATIONAL SECURITY EXCLUSION ? . . . . . . . . . . . . . . . . 670

XIX. COMPARISON WITH OTHER RELEVANT ARMS

XX. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 673

If Al Qaeda was to rent a van to carry [a] ten-kiloton Russian

Fissile material, here defined as highly enriched uranium (HEU) or

5. GRAHAM ALLISON, NUCLEAR TERRORISM, THE ULTIMATE PREVENTABLE CATASTROPHE

negotiations could produce confidence building measures and declarations

Nuclear Non-Proliferation, available at http://www.nea.fr/html/law/nlb/Nlb-62/sandslov.pdf (last

controversial proposal that only would be relevant to a treaty without a

III. A NEW APPROACH TO A FMCT

12. This occurred at the Conference on Disarmament in 1998.

This expanded the IAEA’s authority to detect undeclared enrichment and

IV. FMCT BACKGROUND AND HISTORY

and more limited international controls.

The Comprehensive Nuclear Test Ban Treaty (CTBT) was negotiated

We will pursue new steps to control the materials for nuclear

64. See Comprehensive Nuclear Test Ban Treaty, at http://www.dfat.gov.au/security/aus_

nations. We will press for an international agreement that would

Presidents Clinton and Boris Yeltsin, at their meeting in Moscow on

In the Chemical Weapons Convention,76 for example, there was no

76. CWC, supra note 66.

that utilize substantial quantities of fissile material, could continue to

NPT and Iran is widely suspected to be pursuing nuclear weapons in

A Luxembourg or even a Germany may have no inclination to

This is especially important in regions where conflict is possible, such as

V. THE CONFERENCE ON DISARMAMENT AND THE FMCT: A

eventual goal of nuclear disarmament, many states wanted to see a linkage

In 2002, the persisting deadlock over the mandate of a potential

treaty, together with an early entry into force of the Comprehensive

Since 2002, the CD has not reached an agreement on a program of

In the past, the United States consistently expressed a willingness and

VI. HOW TO ADDRESS NUCLEAR PROLIFERATION ?

Traditional arms controllers seek international agreements on nuclear

non-proliferation treaties, and then systematically break them. . . . If

Indeed, “if and when” a nuclear device is detonated in a metropolitan

VII. NATIONAL SECURITY , NONPROLIFERATION , AND COUNTER -

116. See U.S. Dep’t of State, Liberia Proliferation Security Initiative, at

facilities before Iran is capable of manufacturing nuclear weapons.123 Such

We need a better strategy, an integrated one that will make it far

provide them with a politically attractive and legally binding means

We have called upon the Conference on Disarmament to initiate