Barry Kellman

Criminalization and control of WMD proliferation: The security council acts

A terrorist—or perhaps an extortionist, or even just a psychotic—gets a weapon of mass destruction (WMD). The weapon may have been stolen from a military stockpile; it has been crudely developed from covertly obtained precursors. So armed, the culprit poses a dire threat. Not only is there a risk of enormous casualties, the detonation of this weapon could incite panic that rips the sinews of modern civilization. That this image is profoundly disturbing need not be belabored. More challenging is to ask how to prevent its occurrence. At the core of this inquiry stands a pivotal debate about the role of law in advancing human security, indeed about the future of global governance. Almost without notice, the United Nations Security Council (UNSC) strode boldly into this debate and set forth a framework that will map our strategies for preventing WMD terrorism. Much about this framework is controversial with manifold implications whose significance has yet to be fully appreciated. But not debatable is that Resolution 1540 is now the law of the world, obligatory for all.

WMD proliferation: An international crime?

Professor Barry Kellman teaches at DePaul University College of Law and is Co-Director of the International Criminal Justice and Weapons Control Center. He chairs the American Bar Association Committee on Law and National Security and is also Chair of the Arms Control Section of the American Society of International Law. Professor Kellman has recently served as legal consultant to the National Commission on Terrorism, and he is a legal authority on the Chemical Weapons Convention (CWC). He has served as a consultant to the U.S. Department of Defense on issues relating to the legal implementation of the CWC and other major arms control treaties. He is the author of numerous reports for the U.S. government as well as articles and chapters on national security, the laws of armed conflict, Middle East arms control, nuclear nonproliferation, biological weapons control, and weapons smuggling.

Enforcing Nuclear Non-Proliferation—The Role of Verification

Nuclear non-proliferation verification should be framed as a multiple negative in connection with deterring and detecting States’ nuclear activities so as to impel States to neither develop nor otherwise acquire disallowed weapons. Accordingly, international authorities must have legal authority to determine whether non-proliferation obligations are satisfied, to resolve doubts about compliance, and in the rare case to coercively enforce such obligations. Ultimately, verification necessarily entails an elevation of legal authority to judge a State’s behaviour from self-appointed State political and military elites to technical elites within the United Nations or other international organizations, thereby strengthening global governance in the cause of peace and security. The international community must know what States are doing with and about nuclear and other weapons, and this superior interest must trump the strategic interests of any particular State. This chapter first asserts that the core imperative of verification must be to enable detection of violations of non-proliferation obligations, and it frames the International Atomic Energy Agency’s (IAEA) role in verifying compliance with States’ mutual commitment to nuclear non-proliferation. It then addresses two controversies associated with nuclear non-proliferation verification, respectively: the scope of States’ legal obligation to allow the IAEA to resolve doubts about compliance, and the Security Council’s authority to impose sanctions for non-compliance with nuclear non-proliferation obligations pursuant to recent international law decisions. The author concludes that the IAEA is fully mandated to verify not only the correctness but also the completeness of a State’s reports, and the Security Council has unreviewable authority to enforce international obligations in the maintenance of peace and security.